The day after the 2021 inauguration, U.S. Senator Chris Murphy (D-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 violations 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 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.
Since 2015, The Foilies have served as an annual opportunity to name-and-shame the uncoolest government 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 journalists, activists, academics, and everyday folk who have filed public records and experienced retaliation, over-redactions, exorbitant fees, and other transparency malpractice. We publish this rogues gallery as a faux awards program during Sunshine Week (March 14-20, 2021), the annual celebration of open government organized by the News Leaders Association.
This year, the Electronic Frontier Foundation is publishing The Foilies in partnership with MuckRock News, a non-profit dedicated to building a community of cool kids who file Freedom of Information Act (FOIA) and local public records requests.
And without further ado, here are four COVID-related FOIA faux pas, including a doozy from one of North Carolina’s very own state agencies.
The Most Expensive Cover-Up Award—Small Business Administration
In the early weeks of the pandemic, the Small Business Administration (SBA) awarded millions of dollars to small businesses through new COVID-related relief programs—but didn’t make public the names of recipients. 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 organizations sued—tried to withhold the information under FOIA Exemptions 4 and 6, for confidential and private information. 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 Secret COVID Statistics Award—North Carolina Department of Health and Human Services
Seeking a better understanding of the toll of COVID-19 in the early days of the pandemic, journalists in North Carolina requested copies of death certificates from local county health departments. Within days, officials from the state Department of Health and Human Services reached out to county offices with guidance not to provide the requested records—without citing any legal justification whatsoever. DHHS did not respond to reporters’ questions about why it issued that guidance or how it was justified.
Some local agencies followed the guidance and withheld records, some responded speedily, and some turned them over begrudgingly—emphasis on the grudge.
“I will be making everyone in Iredell County aware through various means available; that you are wanting all these death records with their loved ones private information!” one county official wrote to The News and Observer reporters in an email. “As an elected official, it is relevant the public be aware of how you are trying to bully the county into just giving you info from private citizens because you think you deserve it.”
The Pharaoh Prize for Deadline Extensions— Chicago Mayor Lori Lightfoot
With COVID-19 affecting all levels of government operations, 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, according 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 is 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 Juking the FOIA Stats Award—Centers for Disease Control
The Wire, the classic HBO police drama, laid bare how police departments across the country manipulate data to present trends about crime being down. As ex-detective Roland Pryzbylewski put it: “Juking the stats … Making robberies into larcenies. Making rapes disappear. You juke the stats, and majors become colonels.”
The Centers for Disease Control seems to love to juke its FOIA stats. As the non-profit advocacy organization American Oversight alleged in a lawsuit last year, the CDC has been systematically rejecting FOIA requests by claiming they are overly broad or burdensome, despite years of court decisions requiring agencies to work in good faith with requesters to try to help them find records or narrow their request. The CDC then categorizes those supposedly overbroad requests as “withdrawn” by the requester and closes the file without having to provide any records. So those FOIAs disappear, much like the violent crime reports in The Wire.
The CDC’s annual FOIA reports show that the agency’s two-step juke move is a favorite. According to American Oversight, between 2016 and 2019, CDC closed between 21 and 31 percent of all FOIA requests it received as “withdrawn.” CDC’s closure rate during that period was roughly three times that of its parent agency, the Department of Health and Human Services, which on average closed only six to 10 percent of its FOIAs as withdrawn. After American Oversight sued, the CDC began releasing documents.
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