The Foilies 2023

Recognizing the worst in government transparency

These days, it seems everyone is finding classified documents in places they shouldn’t be: homes, offices, storage lockers, garages, guitar cases, between the cracks of couches, under some withered celery in the vegetable drawer … OK, we’re exaggerating — but it is getting ridiculous. 

While pundits speculate whether President Donald Trump, Vice President Mike Pence and President Joe Biden put national security at risk by hoarding secrets, that ultimately might not be the biggest problem. 

What we know for sure is that these episodes illustrate overlapping problems for government transparency. It reveals an epidemic of over-aggressive classification of documents that could easily be made public. It means that an untold number of documents that belong to the public went missing — even though we may not get to see them for at least 25 years, when the law requires a mandatory declassification review. And then there’s the big, troubling transparency question: If these officials pocketed national secrets, what other troves of non-secret but nonetheless important documents did they hold on to, potentially frustrating the public’s ability to ever see them? 

It doesn’t do much good to file a Freedom of Information Act request for records that have disappeared.

Misbehavior like this is why we created The Foilies, our annual tongue-in-cheek “awards” for agencies and officials that thwart the public’s right to government information or otherwise respond outrageously to requests for documents and records. Each year, the Electronic Frontier Foundation and MuckRock News, in partnership with the Association of Alternative Newsmedia, publish this list of ne’er-do-wells to celebrate Sunshine Week (March 12-18) — an annual event to raise the profile of the democratic concept of government transparency.

It may be many years before the public learns what secret and not-so-secret documents weren’t turned over by past administrations to the National Archives. But when we do, we’ll be sure to nominate them for the top prizes. In the meantime, we have no shortage of redaction rascals and right-to-know knaves, from agencies assessing astronomical fees to obtain documents to officials who overtly obstruct openness to protect corporate interests. Read on and get to know the 2023 who’s-who of government opacity. 

(I’m Not Your) Steppin’ Stone to Transparency Award: Federal Bureau of Investigation

We are all lucky that the FBI is always on the lookout for “left wing innovations of a political nature,” especially those nasty “subliminal messages.” That’s why, in 1967, it sent an informant to a Monkees concert to report on the band’s anti-war sentiment.

Micky Dolenz, the band’s sole surviving member, is suing for that file under FOIA. As his complaint points out, the FBI spied on many musicians of that era, including Jimi Hendrix and John Lennon.

Dolenz sued after the FBI failed to produce the file beyond the heavily redacted portion that it already published online. The FBI has since provided five more redacted pages, Dolenz’s attorney tell us. Hopefully, this will shed more light on the FBI’s heroic war against Beatles, Monkees, and other subversive members of the animal kingdom.

The Redactions Don’t Gitmo Surreal Award: The U.S. Southern Command

The U.S. facility at Guantanamo Bay regularly serves up both insults and injuries. A number of people still held there have been subjected to torture and other inhumane treatment at U.S. “black sites”; many are imprisoned indefinitely; and the Pentagon considers detainees’ artwork to be property of the U.S. government. The whole thing is a bit surreal, but U.S. Southern Command (SOUTHCOM) has more techniques for turning up the dial. 

Bloomberg reporter Jason Leopold submitted a FOIA request in 2017 for artwork created by those detained at Guantanamo Bay. SOUTHCOM finally fulfilled the request last spring, and it took its own creative liberties with the release.

To the hundreds of pages of colorful paintings and drawings created by Gitmo prisoners, the military added hundreds of little white redactions. FOIA requires redactions to be very particular and to specifically cite applicable exemptions. It seems there were plenty of very particular elements with which the agency took issue, claiming that amid trees of leaves and other scenes were materials that were ineligible for release due to personal privacy concerns and the risk that they would betray law enforcement techniques. When prisoners’ art could potentially disclose military secrets, we’re well through the looking glass.

“Gitmo, after 20-plus years, is not only a black box of secrecy,” Leopold said, “but it has its own Orwellian rules when it comes to transparency.”

We Can Neither Confirm Nor Deny the Existence of This Award: National Security Agency

Sometimes agencies will respond to your FOIA request with a stack of documents. Other times, they will reject the request out of hand. But some agencies choose a third route: They tell you they can neither confirm nor deny whether the information exists, because the subject matter is classified, or because a positive or negative response would expose the agency’s hand in whatever intelligence or investigation game they’re playing. 

This so-called “Glomar response” is derived from a Cold War-era case, when the CIA refused to confirm or deny to the Los Angeles Times whether it had information about the USNS Hughes Glomar Explorer, a CIA ship that was used to try to salvage a sunken Soviet spy sub.

“The Reporters Committee for Freedom of the Press is studying the prevalence of so-called ‘Glomar’ responses to FOIA requests across the federal government,” RCFP Senior Staff Attorney Adam Marshall told us. “As part of that project, it has submitted FOIA requests (what else) to every federal agency regarding their Glomar volume over a five-year period.”

So far, RCFP has learned that the U.S. Commodity Futures Trading Commission sent four Glomars; the U.S. Department of Energy Office of the Inspector General sent 14; and the U.S. Department of Health and Human Services Office of the Inspector General sent 102. 

The NSA came back with an astounding 2,721 Glomar responses over the five-year period. As Marshall noted on Twitter, in fiscal year 2021 alone, Glomars accounted for at least 41% of all the FOIA requests the NSA processed. We honor the NSA for being so transparent about its lack of transparency.

The Leave No Coffee Mug Unturned Award: General Escobedo, Mexico

When an agency receives a records request, an official is supposed to conduct a thorough search, not poke around half-heartedly before generating a boilerplate rejection letter. What’s rare is for an agency to send a photo essay documenting their fruitless hunt for records. 

That’s exactly how the city of General Escobedo in Nuevo León, Mexico, responded to a public records request that the EFF filed for documents related to a predictive policing law under Mexico’s national transparency law. The “Inexistencia de Información” letter they sent included a moment-by-moment photo series of their journey, proving they looked really hard, but couldn’t find any records. 

First, the photos showed they were outside the city’s security secretariat building. Then they were standing at the door to the police investigative analysis unit. Then they were sitting at a computer, looking at files, with a few screengrabs. Then they were looking in a filing cabinet. 

The next photo almost caused us to do a spit take: They were looking in the drawer where they keep their coffee mugs — just in case there was a print-out jammed between the tea bags and the stevia. See, they looked everywhere.

Except … those screengrabs on the computer they breezed past were exactly the kind of documents we wanted. EFF appealed the case before the state’s transparency board, which eventually forced Escobedo to release a slideshow and receipts showing the city had wasted more than 4 million pesos on the Sistema de Predicción de Delitos (SPRED) project. 

The Wishy-Washy Access Award: Alphabet and The Dalles, Oregon

The Western United States has been caught in a 20-year megadrought, but when The Oregonian/OregonLive sought records on water usage from the city of The Dalles, the news organization found itself on the wrong side of a lawsuit. The city claimed the data was a trade secret, and filed suit on behalf of Google parent company Alphabet to block the release of records.

Alphabet, like other major tech companies, has increasingly invested in massive data centers that slurp up vast quantities of water to cool off their hardware. How much water, however, was a mystery, and one of pressing concern for locals. One resident told The Associated Press she had seen her well water continue to drop year after year. “At the end of the day, if there’s not enough water, who’s going to win?” she asked. After a 13-month fight, there was something to savor: The city dropped its fight. Alphabet even tried to spin it as a PR win and declared itself a champion of transparency.

“It is one example of the importance of transparency, which we are aiming to increase … which includes site-level water usage numbers for all our U.S. data center sites, including The Dalles,” a spokesperson said at the time.

The data was worth fighting for: The data centers’ water usage had tripled in the past five years, to where it consumes more than a quarter of all water used in the city, according to analysis from Mike Rogoway at The Oregonian/OregonLive.

The Outrageous FOIA Fee of the Year Award: Rochester Community Schools District

This year’s winner for most ludicrous fee assessment takes us to a suburb north of Detroit, where parents were met with a hefty price tag for trying to find out whether the school district was spying on them. 

As reported by WXYZ, the parents were part of a Facebook group where they discussed their dissatisfaction with the district’s approach to remote learning. After a local parent sued the district, claiming she was fired because a district official had complained to her employer about her criticism of the district’s COVID-19 policies, these parents began filing public records requests to see if the district was monitoring their social media.

When one parent asked for records to know whether their name was included in any social media monitoring, the district said that to comply with the request, staff would have to search every email ever sent by an employee — a total of 12,115,251 emails. The district told the parent to be prepared to be liable for a whopping $18,641,345 fee, with $9,320,673.73 due in advance. That’s a lot of bake sales. 

The Foilies (CC BY) were compiled by the Electronic Frontier Foundation (Director of Investigations Dave Maass, Senior Staff Attorney Aaron Mackey, Frank Stanton Fellow Mukund Rathi, Investigative Researcher Beryl Lipton) and MuckRock (Co-Founder Michael Morisy, Data Reporter Dillon Bergin, and Investigations Editor Derek Kravitz), with further review and editing by Shawn Musgrave. Illustrations are by EFF Designer Caitlyn Crites. The Foilies are published in partnership with the Association of Alternative Newsmedia.