TRANSPARENCY TUESDAY: Is Big Brother watching you -- from above? FOIA suit may reveal whether you're on Candid Drone-Cam.



To the ever-growing list of technology-aided privacy anxieties (does Google Image Recognition really think I look like a publicity photo from "Planet of the Apes," and did I have broccoli between my teeth when the ATM camera was on?), add this one: Are government drones videotaping my bald spot?

In a suit filed Jan. 10, the nonprofit Electronic Frontier Foundation is demanding that the U.S. Department of Transportation disclose documents that will shed light on the applications by both government and private entities for clearance to fly unmanned "drone" surveillance planes in U.S. airspace.

Any aircraft operator wishing to fly drone aircraft in federally regulated airspace (basically, anywhere above model-airplane elevation) must obtain a certificate from the Federal Aviation Administration, a division of the DOT. As of July 2010, the FAA reported having 14 active certificates for scientific researchers and another 247 for U.S. government agencies.

While it is known anecdotally that some U.S. agencies use drones for domestic surveillance, including U.S. Customs and Border Protection, the FAA has never disclosed who holds the certificates, or who has applied and been turned down.

The EFF's suit provides a helpful reminder of the mechanics -- and the shortcomings -- of federal information disclosure law.

Most journalists have at least passing familiarity with state public-records laws, since they are the laws that apply to the agencies of local government (including schools and police departments) with which beginning reporters most often deal.

Fewer are acquainted with the workings of the federal Freedom of Information Act (FOIA). That's understandable, since FOIA is notoriously inefficient -- in EFF's case, no responsive documents were produced for nine months and counting, according to a complaint filed in U.S. District Court for the Northern District of California.

Nevertheless, a federal FOIA request occasionally becomes necessary -- and if so, a few pointers and reminders are useful:

  • The Reporters Committee for Freedom of the Press maintains a nifty fill-in-the-blanks online form that can be a time-saver in creating a FOIA request, with all of the essential legal boilerplate already compiled. And considering how often the initial request is denied or ignored, the RCFP has helpfully created a standardized appeal letter and federal lawsuit as well.
  • Remember that Congress and the federal courts are not required to honor FOIA requests. The statute covers only agencies of the executive branch (though not the president and his innermost White House staff). That doesn't mean that millions of pages of judicial and legislative records aren't widely available -- they are. Just don't waste time sending a FOIA letter.
  • Under federal law, an agency normally has 20 days from receipt of a request to provide a response. That is the ideal, but it is not unheard of for responses to take weeks, months and occasionally years. Knowing how long to wait is really more art than science, and depends on both the difficulty of fulfilling the request and the backlog at the agency.
  • Most good-sized agencies have a "FOIA Public Liaison" who is supposed to understand the law and be accessible to answer questions and troubleshoot if a requester runs into difficulty. But if that office isn't immediately helpful, a federal ombudsman agency, the Office of Government Information Systems (OGIS), was created in 2007 to help expedite compliance. OGIS staff attorneys can mediate access disputes if the initial request has gone unfulfilled. (As a side note, the online case logs that OGIS periodically releases are fascinating reading for freedom-of-information geeks -- and at times may spark story ideas.)
  • Agencies get to set their own internal time-clocks for appeals -- an appeal may be due as soon as 30 days from receipt of a denial -- so if you receive a rejection letter, check immediately to make sure you don't miss the deadline. But you needn't wait for a formal "denial letter" to begin the appeal process. If months have gone by with no response, that is legally equivalent to a denial, and the requester can appeal or sue.
  • Date all of your correspondence with the agency and save copies. If it becomes necessary to sue, showing how much time went by without a response, and that you made diligent follow-up efforts, can be helpful in persuading a judge.
Remember that the shortest path between you and your records sometimes goes through a side door. The staff of a friendly member of Congress may be willing to make the request -- and you'd be amazed how much faster a letter gets answered when the return address starts with "Senator."

Consider, too, whether a more accessible agency might have copies of the records you want. For instance, statistics compiled by the U.S. Department of Education may have been shared with your state's DOE.

Finally, publicize the delay or obstruction. Widespread dissatisfaction with responsiveness to FOIA brought about a series of 2007 legislative reforms, including the creation of OGIS. Sometimes the refusal to produce records is the story. And sometimes that's the story that federal policymakers most need to hear.

Tagged: public records, Transparency Tuesday