Police body cams should be FOIAble

In the past year, several deadly interactions between police and unarmed civilians have prompted law enforcement agencies nationwide to equip patrol officers with body-worn video cameras. Police and lawmakers hope use of cameras will improve interactions between officers and civilians, assist investigations of crimes and officer misconduct, and improve public trust of law enforcement officers.

Use of body-worn cameras poses thorny questions for police departments and legislators at the state and local levels, including when cameras will be turned on, circumstances under which they may be turned off, how long to keep recordings, and the purposes for which BWC video may be used.

The issue of concern to the SPJ is whether, and to what extent, body-worn camera video will be accessible to the public. That question has evoked vastly different responses from officials across the country – ranging from release on YouTube of low-resolution versions of all recordings by the Seattle Police Department, to a blanket Freedom of Information Act exemption proposed by the mayor of Washington, D.C.

Officials who argue against public disclosure make three arguments: that encounters between police and civilians frequently are embarrassing or involve sensitive issues; that disclosure might make solving crimes more difficult; and that responding to requests for BWC video will take officers away from more important tasks and break department budgets.

SPJ understands that public disclosure of BWC video may implicate privacy rights of individuals with whom officers interact, particularly when encounters occur in private places. We understand that in some cases there will be valid investigatory reasons to keep BWC recordings secret, at least temporarily. We understand that disclosing BWC recordings under public records laws will require police to devote resources to review and redact some recordings.

If the goal is to improve public trust in the police, denying the public access is likely to accomplish the opposite. If the goal is to protect privacy or the integrity of criminal investigations, state and local open records laws already include effective exemptions. If the goal is to reduce the cost of FOIA compliance, we might as well give up any pretense of government transparency.

Exempting BWC videos from disclosure will foster distrust because an open records law exemption is not a prohibition against disclosure, it merely allows an agency to withhold records. It is safe to assume that if BWC recordings portray officers in a good light or counter allegations of misconduct, police will move quickly to review and release video to news outlets. If, in response to allegations of misconduct, police cite an exemption to withhold video, many in the community will assume the worst, that officers have something to hide. That perception may be reinforced by bystanders’ cellphone video or accounts given to reporters.

SPJ is not alone in believing that existing FOIA exemptions are up to the task, and that BWC secrecy will harm police-community relations. The Fraternal Order of Police and the D.C. Office of Police Complains, the agency charged with investigating complaints against officers, joined SPJ’s D.C. Professional Chapter in opposing the proposed FOIA exemption.

Opponents of disclosure argue that encounters between officers and civilians often occur in dwellings or other places where individual privacy is an over-riding concern. But many such encounters occur in public places, and even when officers interact with civilians in private places, for example while making arrests, disclosure of the video might not rise to the level of a “clearly unwarranted invasion of personal privacy.”

Finally, proponents of BWC secrecy argue that without an exemption police departments will be forced to respond to a large number of requests for voluminous BWC recordings. They fear that many requests will come from neighborhood busy bodies and voyeurs. There are two major flaws in that argument:

  • This is a new technology and no one can predict how many seconds, minutes or hours of recordings would have to be reviewed, much less redacted, in response to an individual request. Although BWCs are new, they are not unique. Police have used CCTV and dashboard cameras for a decade or more, and law enforcement agencies have not been overwhelmed by requests for those videos.
  • The cost of responding to public records requests is never a justification for exempting an entire category of records from disclosure. The moment lawmakers decide that the cost of compliance justifies creating an exemption from disclosure, will mark the first step down a very slippery slope toward government secrecy.

Because most law enforcement agencies are just beginning BWC use, any attempt to gauge the average number of requests they will receive or how much video they would have to review and possibly redact in an average month would be speculative. Most interactions between officers on patrol and civilians last several minutes, not hours, and requested BWC recordings likely would be short.[1]

The open records request process undoubtedly will deter neighborhood busy bodies and voyeurs. Consider that when you make a FOIA request you do not get responsive records immediately. Police often have 10 business days — two weeks — or more to respond, and may be able to justify additional time to review and redact BWC video. For news outlets working on daily stories, use of BWC recordings will be limited to instances in which police affirmatively choose to release video. Only if a story will develop over a considerable period of time — a major crime, the recent events in Baltimore following Freddie Gray’s death — will it be practical for a news outlet to request BWC recordings under the open records law.

Lawmakers should assume that a person who files a request has a significant interest in the police-civilian interaction at issue, because s/he is willing to wait weeks to get the video, and may have to file an administrative or judicial appeal if police deny the request. Giving police the ability to release video to suit their interests, but to invoke an FOIA exemption to deny the importance of a requester’s interest, sends a pretty clear and undesirable message — that the goal of the BWC program is to protect law enforcement agencies, not to build public trust.

[1] A study commissioned by Baltimore’s mayor estimates that the average police-civilian interaction last 13 minutes. Mayor Rawlings-Blake’s Working Group on the Use and Implementation of Body-Worn Cameras: Draft Recommendations February 18, 2015 (“Balto. Report”), 31. http://mayor.baltimorecity.gov/sites/default/files/20150218BWCWorkingGroupRecommendations.pdf. The report estimated that it would take 30 minutes and cost about $50 to review and redact 8 minutes of BWC video. Id.

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Meet SPJ’s 2015 Pulliam/Kilgore Freedom of Information Fellow

The government works for us.” Five simple yet powerful words, instilled in me by Boston University data journalism professor Maggie Mulvihill, changed the course of my reporting career forever.

As an aspiring environmental journalist, I had envisioned myself writing stories from the field, National Geographic style, as opposed to poring over government data and documents and sending out FOIA requests. I just didn’t know how much information was out there, and all the possibilities open to me through investigative work. After publishing a campaign finance article covering major donors in Massachusetts, I realized, the real stories lie within those documents hidden in plain sight.

Yet as I’m sure fellow reporters who have relied on the freedom of information laws can attest: It doesn’t always seem like the government does work for us. In a single semester of beat reporting, I encountered government officials who were unfamiliar with public records laws, others who took months to respond, and — my personal pet peeve — others who sought payment for running of single pages of records (not exactly feasible for a college student on a low budget).

So why do journalists continue to fight the FOIA battle, to take on these in-depth, time-consuming, painstaking processes for a single story? I can only imagine it’s for the same reason I chose to learn more about FOIA through this SPJ fellowship: The information is important. It allows journalists to fulfill their roles as government watchdogs and occasionally, to make an important difference.

My desire to motivate change is concentrated on an area of admitted lesser prominence in journalism: environmental reporting. It’s a challenging beat riddled with scientific jargon, with controversy and uncertainty, and seemingly endless reams of obscure quantitative data. My passion stems from an undergraduate education in ecology and conservation biology, complete with a study abroad experience in the Amazon rainforest and an internship in environmental education.

Although many news outlets don’t provide regular environmental coverage, the focus on the beat has been growing. Articles about oil spills in California, Texas droughts, and President Obama’s plan to “Save the Bees” dominated my news feed this week. And I suspect the need for coverage will only increase, as will the need to collaborate with the EPA, Departments of Energy and Agriculture, and other government organizations with valuable data and documents to aid in reporting.

So how does FOIA play into environmental journalism? More importantly, why should journalists care about the environment, or cover these stories in their publications in the first place? These are the questions I hope to answer during my Pulliam/Kilgore Freedom of Information fellowship with SPJ this summer.

ashleyjones

Ashley Mayrianne Jones, SPJ’s summer 2015 Pulliam/Kilgore Fellow, focuses on utilizing FOIA and open government data to improve investigative environmental reporting. Follow this blog for the latest tips, tricks and news updates. Email Ashley at amayrianne@spj.org or interact on Twitter: @amayrianne.

 

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Science Writers Survey Looks At Reporter-PIO Dealings

Science writers have a hard time getting candid information from government scientists. While the public information office sometimes helps connect the two, the PIO also can interfere with the reporting process to the point of keeping the public from getting all the information it needs. These are some of the findings of the SPJ Freedom of Information Committee’s latest survey of reporters about their relationship with government public information offices. The survey of science writers was released April 9 at a news conference at the National Press Club in Washington, D.C. The survey was cosponsored by the Center for Science and Democracy at the Union of Concerned Scientists.

 
Among other things, the science writers survey found that:
• Almost three quarters (74.2%) of respondents said that PIOs require reporters to get their approval before interviewing employees at least some of the time.
• More than half (52.2%) said that when they ask to interview a specific subject matter expert, their request for an interview is routed to a different agency employee by the PIO at least some of the time.
• 67.5% said they have to make multiple requests for information and interviews when they go through the public information office to get access to a subject matter expert at least some of the time.
• Reporters who got an interview often found the PIO sitting in on the interview either on the telephone or in person (31.8% some of the time, 19.5% most of the time, 6.5% all of the time).
• However, many science writers have figured out ways to interview subject matter experts without involving the public information office (34.2% some of the time, 21.9% most of the time, 10.3% all of the time). Often, these are people they cornered at a conference or meeting, or had a long-term relationship with.

 

Kathryn Foxhall, an SPJ FOI Committee member who has made a study of the PIO issue, said at Thursday’s conference that the problem of reporters being required to go through the PIO to talk to government employees is becoming widespread in recent years.
“Most basically, when reporters are required to go through PIOs to talk to anyone, the source people know they are under surveillance by the official structure and that changes everything. Likely enough, there is someone in the agency who could blow the whole story out of the water if the PIOs weren’t tracking who is talking to which reporter,” she said.
“Maybe the most frequent problem is not about hiding malfeasance. It may be the constant blockage of pieces of our education, so the whole understanding is weak,” she said. “However, often enough there is also just stone-cold manipulation of the message according to insiders’ ideas and desires, including political purposes.”

The report released April 9, which included survey results from science writers, was the fourth in a series of reports from the FOI committee since 2012. The first surveyed Washington¬‐area reporters who covered federal agencies. The second surveyed members of the Education Writers Association and the third was a national survey of state and local political reporters. FOI Committee member Carolyn Carlson led the research for these surveys.

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Every year has 52 ‘sunshine’ weeks

Sunshine Week celebrates access to public information and what it means to people and communities each year.

Much of the week focused on which public officials and governments with exceptionally good or poor track records of providing access to public information. As journalists and open government advocates, we must remain vigilant against and protest shadows in government and do our best to applaud those who try to get it right.

We can often get caught up in the story of the day and forget larger issues at stake when we push for compliance of legal requirements of email archival of federal officials and text messages of local elected leaders. Without competent, experienced journalists pushing for more information to share with the public, especially when the status quo resists, ideals of an informed democracy stumbles farther from reality.

Public records and sunshine laws lose value without journalists and other citizen watchdogs paying close attention and holding government accountable. We must do our part as advocates for transparency. This involves learning laws and policies related to specific governments.

The Reporters Committee for Freedom of the Press did a fantastic job of compiling open record and open meeting laws for each state. SPJ also created a great database to provide specific contacts in each state to assist with answering questions related to public records requests.

Along with public records laws, public record retention schedules provide invaluable information related to what records different public bodies have legal requirements to maintain and archive. Each state has standards that define particular public record categories and the minimum length of time required to maintain.

I have not yet found central location providing retention schedules for each state. However, they’re easily found in online searches.

If you haven’t filed an public records request, iFOIA can help walk you through the process. Also, the crowd-funded FOIA Machine can assist by automating public records requests, a service especially helpful when juggling multiple records requests simultaneously.

Discussing access to public information reminds me we must remain faithful to the bedrock principles found in the SPJ Code of Ethics. Two specific sections come to mind:

Be vigilant and courageous about holding those with power accountable. Give voice to the voiceless.

Recognize a special obligation to serve as watchdogs over public affairs and government. Seek to ensure that the public’s business is conducted in the open, and that public records are open to all.

Shifting topics slightly, most of us have felt a direct impact of industry financial realities with as we embrace the digital world. Many of our own organizations’ balance sheets struggle as we push daily to do our jobs on behalf of and for the public. We must remember our responsibilities as journalists distinguish us from more agnostic terms like “content producer” used by some organizations.

More mediums exist to share stories the public needs to know to make informed decisions impacting every aspect of daily life. However, our ideals as journalists remain solid.

I take pride identifying myself as a journalist and related sense of mission. We have a noble cause essential to democracy functioning properly.

Sunshine Week extends for seven days each year, but we must push and prod for more sunshine during the other 358. It’s who we are and what we do.

Investigative reporter and Mississippi native Robbie Ward has a graduate degree in public policy and administration. He is based in Greenville, S.C., and tweets at @r0bbie_ward.

The views expressed in this blog post are that of the author’s, and do not necessarily reflect the views of the SPJ FOI Committee, the board and staff of the Society of Professional Journalists, or its members.

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SPJ FOI Hangout

Almost every journalist has experienced that frustrated feeling of knowing a government body possesses public information important but unable to access it.

A group of journalists experienced with acquiring public records from government bodies want to help make that feeling a distant memory.

SPJ will hold a Google Hangout on Air at 2 p.m. EST on Friday here to share tips and thoughts on a range of issues critical to journalists of all experience levels who want to provide more access to public information from city halls to statehouses and the federal government.

Participants will include:

  • Danielle McLean – Reporter for the Somerville Journal, New England chapter President of SPJ and member of SPJ FOI Committee.
  • Sonny Albarado – Projects Editor at Arkansas Democrat-Gazette and SPJ immediate past president.
  • Joey Senat – Media law researcher and associate professor of journalism at Oklahoma State University.
  • Kathryn Foxhall – Veteran reporter in the Washington, D.C., area, with long experience covering Congress and the bureaucracy. Her specialties include health and medical issues.
  • Dave Cuillier – Director and associate professor at The University of Arizona’s School of Journalism. He researches citizen and press access to government information.

You can ask questions in advance and during the discussion using your Google+ account or during the broadcast using the Twitter hashtag #spjsunshine.

 

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Digital public records access blocked from the White House to City Hall

Former Secretary of State Hilary Clinton sounded a lot like the mayor of Tupelo, Mississippi last week when the likely presidential candidate discussed using a personal email address and smartphone for official business.

Clinton faced reporters during a news conference about her use of a personal email address instead of an official federal government email address during her tenure in President Barack Obama’s Administration. She said convenience guided her decision to use a single smartphone device for both personal and private correspondence.

“First, when I got to work as secretary of state, I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two,” Clinton said according to a transcript of the news conference.

“Looking back, it would’ve been better if I’d simply used a second email account and carried a second phone, but at the time, this didn’t seem like an issue.”

Those comments sound awfully similar to statements spoken 11 months earlier by Tupelo Mayor Jason Shelton, who also has higher political ambitions. Instead of a high-profile news conference at the United Nations headquarters, Shelton spoke to me in his office in Tupelo City Hall.

“I didn’t request a city phone because I didn’t want to carry two phones and thought it was wasteful and unnecessary,” he said in April 2014. “It’s unfortunate, but I may just have to carry two phones.”

Clinton’s personal team decided which emails to provide to the public, not a non-partisan arbiter. From the federal government to state and local governments throughout the United States, a systemic crisis exists where unknown amounts of emails and text messages – public records – are destroyed, some illegally.

For context related to the Mississippi mayor, Shelton spoke to me about the Mississippi Ethics Commission’s ruling on the city denying my request to review his text messages. The Commission decided text messages sent and received by public officials could qualify as public records, comparable to emails. Back in November 2013, I requested Shelton’s text messages sent and received during a four-day period overlapping with a city department head’s dismissal.

The Mississippi Ethics Commission defined text messages of public officials involving public business as public records regardless of who owned the iPhone, Android or other device.

Like Clinton, Shelton used his personal smartphone to conduct the public’s business. Shelton’s text messages and emails, as public records, regardless of who owned the device used to create them, required archival and maintenance for public inspection.

However, at the time, the Mississippi Ethics Commission had the enforcement power equivalent to a giant state-sanctioned suggestion box. City leaders could have been stubborn and waited for me to file a lawsuit. Instead, city officials decided without a court decision to create and enforce policies to conform to state law.

In October, the Tupelo City Council unanimously created policies for electronic messages and related records management. Among Mississippi’s nearly 400 county and municipal governments, Tupelo remains the sole government to reach this stage of compliance with the Mississippi Public Records Act of 1983.

A few months after Tupelo began enforcing the new policy, Shelton has two iPhones, one for the public’s business and another for his personal life. Communication sent to and from the city phone are archived for public inspection.

Each Tupelo City Council member recently received a city-issued iPad, which archives their emails. The city attorney advised council members to forward their city-related text messages to their city email address until a less cumbersome process is worked out.

As journalists who advocate for open government and transparency, we must remain vigilant of our government officials. We must demand access to records that belong to the public.

 

Investigative reporter and Mississippi native Robbie Ward has a graduate degree in public policy and administration. He is based in Greenville, S.C., and tweets at @r0bbie_ward.

The views expressed in this blog post are that of the author’s, and do not necessarily reflect the views of the SPJ FOI Committee, the board and staff of the Society of Professional Journalists, or its members.

This is the first of Ward’s three guest blog posts as part of recognition of national Sunshine Week. He will also host a Google Hangout on Air at 2 p.m. Friday with top SPJ public records experts and open government advocates.

 

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NorCal SPJ chapter fights for sunshine in San Francisco

Our chapters throughout the country do amazing work to keep government open. Here is a great example, directly in the words of Richard Knee, SPJ NorCal Freedom of Information Committee:

SPJ’s Northern California Chapter has for the second time this year advanced freedom of information in San Francisco, convincing a transparency watchdog commission that a member of the Board of Supervisors twice violated the city’s 1999, voter-passed Sunshine Ordinance through tardy, incomplete delivery of requested public documents to a co-chair of SPJ NorCal’s Freedom of Information Committee.

The panel, called the Sunshine Ordinance Task Force, found on Dec. 3 that Supervisor Katy Tang had responded late to Thomas Peele’s request for all documents and communications mentioning the task force and nominees thereto that she or her staff had sent or received between Nov. 1, 2013, and last May 15. The ordinance stipulates that the task force’s 11 voting members are to include an attorney and a journalist nominated by SPJ.

Peele, an investigative reporter for the Bay Area News Group, shares the FOI Committee helm with Geoffrey W. King, an attorney with the Committee to Protect Journalists.

The task force pinned an additional violation finding on Tang after seeing evidence that some of the requested communications were missing from the 14 pages of documents that her office had provided to Peele. In fact, there was some indication that Tang or her staff might have deleted or destroyed some communications earlier than city and state sunshine laws allow, a criminal offense that could land her in jail for up to three years. The task force planned to investigate that aspect further and could send the matter to the district attorney for possible prosecution.

City and state laws normally give public agencies up to 10 days to respond to records requests, but the San Francisco ordinance requires a response within one business day to any “Immediate Disclosure Request” (IDR) that is clearly labeled as such.

Peele faxed an IDR to Tang’s office late in the day last May 15 after the board’s Rules Committee, which vets city board and commission applicants, had stalled on appointments to the SPJ-nominated and several other task force seats. Tang, who sits on the committee, told the task force in a memorandum that she did not respond to Peele’s request until May 20 because no one in her office had seen the fax until that day. Task force members said that did not excuse her tardiness.

The episode could gain extra visibility because Tang’s colleagues elected her in late November as interim board president through year end. She represents a square-shaped district midway along the city’s Pacific shoreline.

Pressure by SPJ NorCal and citizen activists played a major role in getting the Rules Committee and the board to move forward on the task force appointments in May and June. The SPJ-nominated task force members are Mark Rumold, an attorney with the Electronic Frontier Foundation, and freelance reporter Ali Winston.

Some on the board, including then-president David Chiu, harbored a grudge since the task force found in September 2011 that he and three other supervisors had violated open-meeting laws by ramrodding a residential redevelopment contract with 14 pages of amendments slipped in at the last minute. Chiu was elected in November to the state Assembly and will leave the board at year end.

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Ask an expert: How to appeal a FOIA rejection

Over and over again, I hear journalists complain about being rejected by government agencies when making Freedom of Information Act requests and how difficult it is to successfully file an appeal. So I’ve decided to consult with an expert.

Meet Michael Morisy, co-founder of the MuckRock, a collaborative news site that works with its users in filing Freedom of Information Requests and reports on the results. Since it was founded in 2010, MuckRock has filed almost 12,000 FOIA requests and published over 430,000 pages of government documents.

Here’s his advice:

What avenues can journalists take when their federal Freedom of Information Act request is rejected?

“It’s very easy to get discouraged because usually with FOIA requests you have waited months and months and then you get rejection and it’s pretty intimidating. I would encourage veteran FOIA requesters to appeal every single response they get back. Even if they get some documents, a lot of times people are pretty successful in appealing and saying I don’t think this is everything, keep looking.

I really encourage everybody to take advantage of the various appeal opportunities because you don’t need a lawyer, it’s not a deep understanding of sort-of legal procedure, you just need to send a letter and say ‘I appeal.’ That is a very accessible avenue for everybody. But it really depends on the type of rejection you see and what you are going after.”

What resources can journalists use to help them craft an appeal?

“At MuckRock, we have a bunch of appeals that people can browse through. We also have a question and answer section where if you have a specific rejection, it’s a free resource where everyone can talk. We also have a couple hundred FOIA experts who come in and provide question and answer responses. The RCFP (Reporters Committee for Freedom of Press) has a number of really good response guides and appeal templates.”

How often do appeals work?

“It varies a lot, but we’ve seen about 30 to 40 percent of the time an appeal is at least partially successful. It does add time to the process, but usually an agency can’t say we are going to give you nothing. This is where I think the appeals process is very useful because it tells the agency I’m serious about the request and you need to actually process it. Agencies love to say, ‘well this exemption applies so we are not going to give you the documents you want.’ But rarely does the exemption apply to everything and so by appealing, you can sort of go back to the agency and say, no. Even if parts of what I requested are exempt, not everything is exempt. So please release “separable” information. [Separable] is kind of the keywords I think has been helpful for people.

The first thing you should do is read the rejection letter because that almost always has where you need to send an appeal. Usually where you send the appeal is different than where you sent the original request.”

If you have a piece of advise for someone who may be getting discouraged during the appeal process, what would you tell them?

“I would tell people this is not a personal process. Maybe 90 percent of the time, the people receiving and processing these requests don’t really care about the outcome. They are just trying to do their job and so being kind, professional, but assertive is really important. This particularly applies for the appeal. So take and closely read why the request was rejected in the first place. Was it too vague? You can say, okay I only want documents between this date and this date. Or maybe, I only want emails from this person in March rather than a very broad request.
That is a problem, where many requests are just too broad. So on your appeal, you can kind of narrow your request and try and negotiate with the agency to try and figure out what you are looking for.”

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Contact your senator today to pass FOIA fixes!

Today the Senate Judiciary Committee unanimously passed the S. 2520 FOIA Improvement Act  and now it awaits a vote by the full Senate. This is great news, but time is short for all of us to act! The House already passed a similar bill, so now it’s up to all of us to get this done.

Here is what the bill would do, if passed:

  • Requires in writing the presumption of openness. You would think that is already in FOIA, but it is not! This law would say that the presumption is that public records are open unless there is a law that states otherwise.
  • Limits the “catch-all” exemption. That pesky exemption 5 has allowed a lot of agencies to deny requests willy-nilly. The amendment would require agencies to weigh the public interest in the release of the information in their decision.
  • Strengthens the Office of Government Information Services. This federal ombudsman office would be able to get its recommendations for improving FOIA to Congress with less bureaucratic red tape and delay.
  • Requires agencies to post online records that have been requested at least three times. Very cool. Popular records should be easily retrieved by anyone.
  • No deadline, no copy fees. If an agency doesn’t meet its deadlines in responding to FOIA requests then it can’t charge search and duplication fees. Currently, agencies claim “unusual circumstances” in justifying delays.

In June, SPJ and a variety of other groups banded together to support the legislation. Then-SPJ-President David Cuillier testified before the Senate Judiciary in April to urge for the needed change. You can find more details about the legislation and process, courtesy of OpentheGovernment.org

Contact your U.S. senators now and let them know they should vote “yes”! See the handy online form. Write editorials supporting the legislation, and spread the word far and wide!

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Must read FOI stories – 7/25/14

Every week I do a roundup of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

  • The Electronic Privacy Information Center has sued the United States Customs and Border Protection to compel the agency to produce documents relating to a relatively new comprehensive intelligence database of people and cargo crossing the U.S. border.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

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