F[oia] The Police

RIOTcon talk about how to FOIA the police. Given by @B_meson and @foiaxvx

Transcript

1. F[oia] The Police Erich Snow
 Freddy Martinez
2. ✤ Motivation ✤ Rules to the game ✤ Exemptions and fighting back ✤ Forming request ✤ Tactics + Tips ✤ What to request ✤ Democratizing FOIA + Future Work
3. Using FOIA you can turn this…into…
8. What is a public record? ✤ Anything document created by government* employees while conducting government business (restrictions apply). ✤ Regardless of format ✤ Regardless of medium (email, word docs, text message etc) ✤ Regardless of device
9. Rules to the Game ✤ Every state, city, agency is different, and often agencies don’t know the law. If you do, you are at an advantage ✤ Many guidelines have an attorney fee reimbursement ✤ Pay careful attention to deadlines ✤ You can specify how you want your records ✤ You can request records any way you want, usually
10. FOIA & CPRA are Different, But Sometimes they Aren’t ✤ Deadlines and what missing them means ✤ Lawsuits & Attorney’s Fees ✤ Fee Waivers: Always optional under CPRA to charge fees. Under FOIA, certain categories are automatically entitled to fee waivers. ✤ Privacy: Your own versus anyone else’s. You should totally get your FBI file. ✤ Caselaw: Plenty of free resources. Leagle is a good one. Google is too. ✤ Jurisdiction: FOIA is Federal, look to State laws for State, County, City, etc. Some cities, like San Francisco, have their own Sunshine Ordinances. ✤ Bottom line: Study the law.
11. Forming Your Requests ✤ Agencies do not have an obligation to answer your questions Compare: “How many brown people sued you last year?”
 Contrast: “Documents sufficient to show the number of lawsuits …” ✤ Use broad language (What does “documents” mean?) ✤ Offer to explain or describe what documents you want ✤ Link to news stories, other public documents etc
12. Be Careful ✤ Broad language: You must balance breadth & specificity. ✤ Agencies don’t have to answer ambiguous or unclear requests. ✤ You can always re-submit with different language!
13. Examples
17. Examples
20. “Sheriff’s Office has conducted a diligent and reasonable search but no responsive records exist.” –Santa Clara County Sheriff’s Office
21. Exemptions / Redactions ✤ Law enforcement sensitive ✤ Violate Privacy laws (HIPPA, Gramm-Leach-Bliley Act, Privacy Act, ECPA, etc) ✤ Trade secrets ✤ No obligation to create a record ✤ “Unduly burdensome” ✤ Constructive denials
22. Fighting Back ✤ Law enforcement sensitive ✤ Think about the types of records you can request ✤ Cross reference public statements, court records, etc ✤ Talk to people at the agencies, take contemporaneous notes
23. Fighting Back ✤ Trade Secret ✤ You might have to sue over this one but does the trade secret out weigh public needs to know ✤ Cross reference patents which are all public ✤ Public interest can override trade secret ✤ This one is common because corporations will often be a proxy for responses
24. Fighting Back ✤ No obligation to create a record. ✤ a.k.a the fuck off exemption ✤ Often times the data is all there but they don’t want to sort it (request it all) ✤ Remember: You can specify how you want your records ✤ Ask for electronic searches within named databases ✤ Send a separate FOIA to find out how records are stored.
 Sometimes this info is already available. “Systems of Records.”
25. Fighting Back ✤ “Unduly burdensome” ✤ Send a separate FOIA to find out how records are stored ✤ Ask for electronic searches ✤ Automate your requests and ask for the same records every week until you get them ¯\_(ツ)_/¯
26. Fighting Back ✤ Constructive Denials: common, hard to challenge ✤ They didn’t actually say “no.” ✤ “Sure we can search, but it’ll cost you $6,000 and we can’t promise that once we find the records they won’t be withheld under some exemption anyway.” ✤ “No responsive records” (where did they search?) ✤ Challenge the sufficiency of the search, or the potential costs involved.
27. Fighting Back ✤ Appeal everything! (Administratively first) ✤ You can always sue and it’s to lawyers ✤ FOIA for processing notes of your FOIAs ✤ Use community resources
28. Major : know the rules
29. Major : be persistent
30. Major : be organized
31. How do you know what to request? ✤ “Huh, that’s weird” moments… ✤ ALPR’s ✤ BPD
32. Future Work Democratizing FOIA
33. ✤ Use MuckRock & its community ✤ Slack (lol why not) ✤ foiathepolice.com [coming ‘soon’] ✤ Document Cloud + RECAPR for docs ✤ Internet Archive to host docs ✤ Wayback Machine for research
34. “It’s easy. You can do it yourself. Alone or with a few trusted comrades. Complicated means are not necessary. Not even great technical knowledge. Capital is vulnerable. All you need is to be decided. - Bonnano