22 MONTEREY COUNTY WEEKLY march 16-22, 2023 www.montereycountyweekly.com he knew who deleted records responsive to a public records request, Gableman was refreshingly honest. “Did I delete documents? Yes, I did,” he said. In Gableman’s defense, he believed deleting the records was proper, because in his view, the destroyed records were not part of his election investigation. The problem is that no one can trust Gableman’s judgment, because there is no paper trail to confirm that the records were, in fact, irrelevant to his work. Gableman’s lack of an auditable paper trail to check his work stands in stark contrast to the auditable results of the 2020 Wisconsin election. For his records destruction and general frustration of the public’s right of access, courts have awarded plaintiffs $163,000 in attorney’s fees and costs in one case, and $98,000 in another. The Ancient Art of Dodging Accountability Award: Cyber Ninjas Wisconsin isn’t the only state where we’re recognizing an election “audit” contractor’s misbehavior. After the audit of the 2020 presidential election in Maricopa County, Arizona—which ultimately reaffirmed Biden’s victory—State Senate President Karen Fann tried to save face by claiming that the reason the project spiraled out of control was because the election system was hard to audit, and not because auditing firm Cyber Ninjas might’ve been inexperienced and tilting at windmills. That’s kind of like saying it’s the homework’s fault that the dog ate it. “As our efforts have clearly shown, elections processes here in Arizona are not designed to be easily audited, unlike every other government process accountable to citizens,” she wrote in a statement. “We look forward to implementing improvements to add ease, authentication, transparency, and accountability to our elections processes in the coming legislative session.” The Cyber Ninjas’ own work, however, was anything but authenticatable, transparent and accountable, as the group tried to evade legitimate public records requests at nearly every turn. The nonprofit American Oversight and The Arizona Republic newspaper had to take Cyber Ninjas to court in mid-2021 to demand access to audit records. The firm routinely refused to hand over documents, including communications, despite a court order, leading a judge in 2022 to sanction Cyber Ninjas’ founders $50,000 per day. “I think the variety of creative positions Cyber Ninjas has taken to avoid compliance with this order speaks for itself,” Superior Court Judge John Hannah said. Cyber Ninjas began handing over records last year, revealing connections between the firm and various election conspiracy theorists and lawyers tied to Trump’s campaign and his efforts to overturn the election. According to The Arizona Republic, Cyber Ninjas’ fines surpassed $10 million, and the firm closed up shop—and yet they still haven’t learned their lesson. The firm continues to withhold and improperly redact text messages and other correspondence. For example, Cyber Ninjas has withheld communications between CEO Doug Logan and prominent election denier Phil Waldron, claiming the messages are covered by legal privilege—even though Waldron is not a lawyer. The Transparency Tax Award: Mendocino County The Foilies regularly recounts outrageous public records fees. Those are usually oneoff efforts This award to officials in Mendocino County in California is based on their creation of a fee system that appears designed to discourage everyone from requesting public records. The ordinance lets officials charge you $20 per hour to look for records if you fail to “describe a specifically identifiable record.” So, if you asked for the sheriff’s “Policy 410.30,” you wouldn’t get charged, but if you asked for “all directives, policies and orders related to body-worn cameras,” you might have to pony up hard cash. Even worse, the ordinance says that if you ask for emails or other types of records that “may” include information that needs to be redacted or withheld, the county would charge you $50 or $150 per hour, depending on whether an attorney needs to be involved. In other words, the ordinance punishes the public for not knowing exactly how the county organizes and stores its records, or what records might contain sensitive information. Mendocino County’s ordinance is on shaky legal ground. The California Public Records Act does not give state and local government agencies the authority to assess their own search fees, review fees or redaction fees. The law only allows agencies to charge the public what it costs to make copies of the records they seek. But aside from being potentially unlawful, Mendocino County’s fee ordinance is an affront to its residents. It treats all records requests as hostile, resource-wasting inquiries rather than a central mission of any public agency committed to transparency. The Burn After Reading Award: Immigration and Customs Enforcement Though it might be surprising, sometimes an agency will fulfill your request—and realize afterward they’d like to hit the undo button. Generally, however, the First Amendment protects your right to keep the records and publish them, even when the government could have originally withheld them. That’s what happened to the FOIA warrior and journalist Jason Leopold after Immigration and Customs Enforcement (ICE) used the wrong highlighter when they responded to his request for information on Department of Homeland Security (DHS) activity in Portland, Oregon, in the wake of George Floyd’s murder in 2020. Leopold asked ICE for communication and documents from the DHS about the training and placement of DHS personnel in Portland that summer and received a “DHS Component Actions Report” in response. Among the information on the report that ICE later claimed was sensitive enough to warrant a gimmeback: the exact numbers of helmets, crowd-control shields, and pepper-spray projectiles that the DHS loaned to the United States Park Police, the police force of the National Park Service. The Foilies were compiled by the Electronic Frontier Foundation (Director of Investigations Dave Maass, Senior Staff Attorney Aaron Mackey, Frank Stanton Fellow Mukund Rathi and 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. “Did I delete documents? Yes, I did.”
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