[liberationtech] technical legal questions about FOIA redactions and MIT's FOIA oddness

[Shava Nerad]

Can anyone tell me if there are consequences if third party information,
which should be redacted from FOIA documents, is not properly redacted from
a FOIA requested document by the agency the document is requested from?  Is
there any consequence under the Privacy Act or any such thing?

For example, if the DOJ were to, say, somewhat negligently miss a bunch of
names on the Conde Nast FOIA request and hand it to Kevin Poulsen, would
there actually be any consequences to the DOJ?  From the case law quoted,
it looks likely if there are any consequences they would be civil damages
after anyone might be harrassed, SWATed, hacked, or bodily harmed,   That
might be cold comfort if you were the new president of MIT.  Even colder
comfort if you were named in those documents.

I might post another post with a philosophical rant on SWATing and the
prospect of retaliation implicit in all of this...

But, it seems so odd that this is an issue, because my understanding is
that MIT has every reason to expect that their staff names should be
strictly and thoroughly redacted if everything were on the up and up.

Or, this is how I would read:
http://www.justice.gov/oip/courtdecisions/exemption6.html

Where cases of privacy of redacted records of non-govt third parties that
were supported after court *challenge* include:

*The court holds that defendant properly invoked Exemption 6 to withhold
the names and contact information of agency contracting officers. For one,
the court notes that the Ninth Circuit "has held that the possibility of
harassment, embarrassment, stigma, and retaliation [among the harms cited
by defendants in this case] are cognizable privacy interests under the
exemption six precedents." The court comments that the responsive records
"abound with examples of contracting officers disclosing their own
mistakes" and notes that "defendant points to plaintiff's own statements as
additional evidence that the contracting officers... will be embarrassed,
humiliated, or possibly harassed if their names and contact information are
released in connection with the reported mistakes." The court also finds
that defendant's contention that "disclosure of the requested information
would have a chilling effect on its employees' willingness to speak with
candor in future reports" is also as "valid factor to be weighed in
balancing the public and private interests." In terms of the public
interest involved, the court agrees with defendant's assertion that because
"the [OIG] report and its findings have already been released, and release
of the names, titles, and contact information will not further the public
good." Accordingly, the court determines that the "invasion of [the
employees'] privacy is not warranted" because their "right of privacy is
greater than the public interest served by disclosure of their private
information."*

*Chesterfield Assocs., Inc. v. U.S. Coast Guard, No. 08-4674, 2009 WL
1406994 (E.D.N.Y. May 19, 2009) (Block, J.). Defendant properly withheld
the names of its own employees and the contractor's employees who were
involved in the bidding process. "[T]he Court perceives no principled basis
for concluding that government employees involved in the bidding process
for public contracts do not have the same privacy interest [as employees
who conduct internal investigations] arising out of the same possibility of
harassment or embarrassment." Moreover, "[plaintiff] has offered no
evidence to support its assertion that the bidding process was somehow
tainted. There is, therefore, no public interest warranting disclosure."*

*Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009)
(Friedman, J.). Plaintiff's challenges to BOP's use of these exemptions
"reflect a misunderstanding of the law, and his notion that the third
person personal privacy exemptions apply only to government employees is
incorrect. The personal privacy exemptions . . . require the agency to
protect the privacy of any third person identified in the records, and the
statute does not except spouses." Plaintiff has failed to identify any
interest in release of this information beyond his own personal interest.
Similarly, he has failed to make a showing of governmental wrongdoing
sufficient to satisfy the Favish standard.*

and in http://www.justice.gov/oip/foia_guide09/exemption6.pdf page 449-451

*In addition, individuals who testify at criminal trials do not forfeit
their rights to privacy *
*except on those very matters that become part of the public record.123 Nor
do individuals who *
*plead guilty to criminal charges lose all rights to privacy with regard to
the proceedings *
*against them.124 Similarly, individuals who provide law enforcement
agencies with reports *
*of illegal conduct have well-recognized privacy interests, particularly
when such persons *
*reasonably fear reprisals for their assistance.125 Even absent any
evidence of fear of reprisals,*
*however, witnesses who provide information to investigative bodies --
administrative and *
*civil, as well as criminal -- ordinarily are accorded privacy protection.
126 (For a more *
*detailed discussion of the privacy protection accorded such law
enforcement sources, see *
*Exemption 7(C), below.) *


All in all a fascinating document.  There are lots of interesting examples
in there with some really fun stories.  John Lennon.  Pig farmers from
hell.  Journalists who won't take no for an answer even when, actually, on
a privacy basis, it sounds like maybe they should.  Hot stuff.  It sure
seems to me, that MIT would have no reason to fear.

Ripping good read.  I got into it.

But, IANAL.

So it makes me wonder, where among the three parties the weirdness lies...

So let me put on my little tin hat here, and let me brainstorm, and let me
ask all of y'all to tell me where I am out of line.

Because, you know, it's not polite to speculate on these things in public.
 But this is just an academic exercise, a gedankenexperiment, and so -- it
doesn't have to be polite.  It just has to be logical.  Please, pick my
logic apart.

I obviously do not understand the legalities and facts, because otherwise,
this would not look so odd.  Someone in this scenario is behaving badly.
 Let's treat it as a mystery, and speculate as to whom, logically?   Is it
Colonel Plum in the Study with a Wrench?


   - The BAD BEAVER theory (MIT bad actor, DOJ neutral, CN neutral):  MIT
   has been a bunch of bad beavers (beavers being the school mascot) and they
   want to delay the reveal of their role in charging Aaron as long as
   possible, even though the FOIA request was expedited by the courts.
    Except, this is a very ham-handed way to delay --  to put the spotlight on
   them if that's the case.  People are going to be looking twice as hard at
   the outcomes in regard to their role now.  Bad tactics.

   - The HOSTAGE theory (MIT neutral, DOJ bad actor, CN neutral):
    Postulate that the DOJ wants to delay the FOIA request at any cost,
   possibly interminably -- this would not be out of step with many precedents
   in prior government cases.  One way to delay further is to slip to MIT who
   has already be SWATed that if they don't cooperate in delaying tactics, the
   FOIA documents might include some improperly redacted references to MIT
   staff.  This of course would be done in a way that could not be reported
   credibly.  On a responsible basis, MIT would have to take it seriously
   though, and would have to file a motion.

   - The COLLUSION theory (MIT and DOJ bad actors, CN neutral):  Neither
   MIT nor DOJ are enthused about their roles being revealed and are colluding
   on bouncing delays back and forth until the cows come home.  This produces
   less damage control than the actual content of the FOIA requested
   documents, presumably, even after redaction.  This might take seeing a next
   step to evaluate.


There are variations of any of these that assume that Conde Nast has some
clue as to what is going on, but is playing for ratings.

To the best of my knowledge we've heard nothing from the MIT internal
inquiry on Aaron.  This might be a great time to find out how that's
progressing.  (Kevin P, have you heard anything from that quarter, since
you're tracking this?)

I have no special knowledge of any of this.  I'm just spinning out the
model as though it were a mystery, with fog of war.  Risk assessment.
 Trust models (which would tell me, trust no one involved, heh!)

I'm an avowed chauvinist (hey, I'm honest -- I don't have a rat on my
finger but I do have a beaver tattooed at least metaphorically on some part
of my anatomy, you can speculate where) but also a friend of the truth
first and foremost.  It makes me sad and wary that we've heard nothing from
the investigator from the Media Lab regarding the independent internal
report...

The integrity of the situation comes first -- no entity is above criticism
or examination -- and transparency protects the integrity of the 'Tute on a
continuing basis.  No Pompeias here.

So, what do you think...?

yrs,
-- 

Shava Nerad
shava23 at gmail.com
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