20 MONTEREY COUNTY WEEKLY march 16-22, 2023 www.montereycountyweekly.com 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 says. “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, in fiscal year 2021 alone, Glomars accounted for at least 41 percent of all the FOIA requests the NSA processed. And so 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 (using Mexico’s equivalent of FOIA) that the EFF filed for documents related to a predictive policing law. The “Inexistencia de Información” letter they sent included a moment-bymoment photo series of their journey, proving they looked really hard, but couldn’t find any records. First, the photos show they were outside the city’s security secretariat building. Then they are shown standing at the door to the police investigative analysis unit. Then sitting at a computer, looking at files, with a few screengrabs. Then looking in a filing cabinet. The next photo shows them 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. Only problem…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 spent more than 4 million pesos on the Sistema de Predicción de Delitos project. The Wishy-Washy Access Award: Alphabet and The Dalles, Oregon The Western U.S. 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. The data turned out to be 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. I Wanted to Clarify That My A** is Covered Award: White House Backroom dealmakers sometimes struggle to keep their deals in the backroom, especially when they inadvertently reveal them in emails that are presumptively public records. That’s when they follow up by saying, “I wanted to clarify that the email I sent was pre-decisional and privileged information,” hoping these magic words will exempt the email from disclosure should anyone file a records request. On June 23, 2022, a White House staffer revealed to the Kentucky governor’s office that President Biden planned to nominate Chad Meredith as a federal judge the next day. Days later, the White House official then tried to use the follow-up “clarification” email as cover. But the Louisville CourierJournal got the story, and the Kentucky governor’s office released the emails confirming the nomination plans, despite the weak follow-up email trying to claw them back into secrecy. The president ultimately scrapped Meredith’s nomination entirely after pro-choice advocates criticized Biden’s apparent backroom trading on judicial nominations with Senate Minority Leader Mitch McConnell. Meredith had defended Kentucky’s anti-abortion laws under the previous Republican governor. The whole ordeal, which was overshadowed by the Supreme Court overruling Roe v. Wade on the very day Meredith would have been nominated, shows the ridiculous ways officials will try to keep public records secret. The Transparently Proud of Destroying Public Records Awards: Michael Gableman The effort to investigate unsubstantiated 2020 election fraud claims in Wisconsin sped past comedy and into ludicrous land. The driver of this ridiculous journey: Michael Gableman, a former Wisconsin Supreme Court justice who was hired by Wisconsin State Assembly Speaker Robin Vos to investigate alleged election fraud. Gableman’s inquiry has cost taxpayers nearly $2 million, with no evidence of any election wrongdoing disclosed when Vos shut it down and fired Gableman last August. The probe itself, however, has generated plenty of violations of state public records laws. Gableman’s inquiry is the subject of at least four public records lawsuits. And in the process of responding to public records requests about his election inquiry, Gableman has admitted to routinely deleting records and deactivating an email account he used while working on the probe. After receiving a records request from American Oversight, someone deleted Gableman’s personal email account, the former justice testified during a hearing in one of the suits. And when questioned about whether The ordinance punishes the public for not knowing exactly how the county organizes and stores its records.
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