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Waymo, owned by Google parent Alphabet Inc. and operator of an autonomous taxi fleet in San Francisco, answers, respectively: “none of your business” and “no!” And a California trial court concurred, ruling in late February that Waymo gets to keep this information secret.
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Waymo sued the California Department of Motor Vehicles to stop it from releasing unredacted records requested by an anonymous person under the California Public Records Act. The records include Waymo’s application to put its self-driving cars on the road and its answers to the DMV’s follow-up questions. The DMV outsourced the redactions to Waymo, and claiming that it needed to protect its trade secrets, Waymo sent the records back with black bars over most of its answers, and even many of the DMV’s questions.
Waymo doesn’t want the public to know which streets its cars operate on, how the cars safely park when picking up and dropping off passengers, and when the cars require trained human drivers to intervene. Waymo even redacted which of its two models — a Jaguar and a Chrysler — will be deployed on California streets … even though someone on those streets can see that for themselves.
#WNTDWPREA (THE WHAT NOT TO DO WITH PUBLIC RECORDS EVER AWARD): ANCHORAGE POLICE DEPARTMENT
“What Not to Do Wednesday,” a social media series from the Anchorage Police Department, had been an attempt to provide lighthearted lessons for avoiding arrest. The weekly shaming session regularly featured seemingly real situations that required a police response. Last February, though, the agency became its own cautionary tale when one particularly controversial post prompted community criticism and records requests, which APD declined to fulfill.
As described in a pre-Valentine’s Day #WNTDW post, officers responded to a call about a physical altercation between two “lovebirds.” The post claimed APD officers told the two to “be nice” and go on their way, but instead the situation escalated: “We ended up in one big pile on the ground,” and one person was ultimately arrested and charged.
Some in the public found the tone of the post dismissive toward what could have been a domestic violence event — particularly notable because then-Police Chief Justin Doll had pointed to domestic violence as a contributor to the current homicide rates, which had otherwise been declining.
Alaska’s News Source requested the name of the referenced arrested individual and was denied. APD claimed that it does not release additional information related to “What Not To Do Wednesday” posts. A subsequent request was met with a $6,400 fee.
FWIW, materials related to WNTDW do not qualify for a valid exemption under Alaska’s public records law.
By the end of February 2021, the APD decided to do away with the series.
“I think if you have an engagement strategy that ultimately creates more concern than it does benefit, then it’s no longer useful,” Chief Doll later said. It’s not clear if APD is also applying this logic to its records process.
Texas law requires a unique detour to deny or redact responsive records, directing agencies to go through the Attorney General for permission to leave anything out. It’s bad news for transparency if that office circumvents proper protocol when handling its own records requests; it’s even worse if those records involve a government official — current Texas AG Ken Paxton — and activities targeted at overthrowing the democratic process.
On Jan. 6, 2021, Paxton (who is currently up for re-election, facing multiple charges for securities fraud, and was reportedly the subject of a 2020 FBI investigation) and his wife were in Washington, D.C., to speak at a rally in support of former President Donald Trump, which was followed by the infamous invasion of the Capitol by Trump supporters. Curious about Paxton’s part in that historic event, a coalition of Texas newspapers submitted a request under the state’s public records law for the text messages and emails Paxton sent that day in D.C.
Paxton’s office declined to release the records. It may not have even looked for them. The newspapers found that the AG doesn’t seem to have its own policy for searching for responsive documents on personal devices, which would certainly be subject to public records law, even if the device is privately owned.
The Travis County District Attorney subsequently determined that Paxton’s office had indeed violated the Texas open records law. Paxton maintains that no wrongdoing occurred and, as of late February, hadn’t responded to a letter sent by the DA threatening a lawsuit if the situation is not remedied ASAP.
THE TRANSPARENCY PENALTY FLAG AWARD: BIG 10 CONFERENCE
In the face of increasing public interest, administrators at the Big 10 sporting universities tried to take a page out of the ol’ college playbook last year and run some serious interference on the public records process.
In an apparent attempt to “hide the ball” (that is, their records on when football would be coming back), university leaders suggested to one another that they communicate via a portal used across universities. Reporters and fans saw the move as an attempt to avoid the prying eyes of avid football fans and others who wanted to know more about what to expect on the field and in the classroom.
“I would be delighted to share information, but perhaps we can do this through the Big 10 portal, which will assure confidentiality?” Wisconsin Chancellor Rebecca Blank shared via email.
Of course, the emails discussing the attempted circumvention became public via a records request. Officials’ attempt to disguise their secrecy play was even worse than a quarterback forgetting to pretend to hand off the ball in a play-action pass.
University administrators claimed that the use of the private portal was for ease of communication rather than concerns over public scrutiny. We’re still calling a penalty, however.
THE REMEDIAL EDUCATION AWARD: FAIRFAX COUNTY PUBLIC SCHOOLS
Once a FOIA is released, the First Amendment generally grants broad leeway to the requester to do what they will with the materials. It’s the agency’s job to properly review, redact and release records in a timely manner. But after Callie Oettinger and Debra Tisler dug into a series of student privacy breaches by Fairfax County Public Schools, the school decided the quickest way to fix the problem was to hide the evidence. Last September, the pair received a series of letters from the school system and a high-priced law firm demanding they remove the documents from the web and return or destroy the documents.
The impulse to try to silence the messenger is a common one: A few years ago, Foilies partner MuckRock was on the receiving end of a similar demand in Seattle. While the tactics don’t pass constitutional muster, they work well enough to create headaches and uncertainty for requesters who often find themselves thrust into a legal battle they weren’t looking to fight. In fact, in this case, after the duo showed up for the initial hearing, a judge ordered a temporary restraining order barring the further publication of documents. This was despite the fact that they had actually removed all the personally identifiable data from the versions of the documents they posted.
Fortunately, soon after the prior restraint, the requesters received pro bono legal assistance from Timothy Sandefur of the Goldwater Institute and Ketan Bhirud of Troutman Pepper. In November — after two months of legal wrangling, negative press and legal bills for the school — the court found the school’s arguments “simply not relevant” and “almost frivolous,” as the Goldwater Institute noted.
The Foilies were compiled by the Electronic Frontier Foundation (Director of Investigations Dave Maass, Senior Staff Attorney Aaron Mackey, Frank Stanton Fellow Mukund Rathi, Investigative Researcher Beryl Lipton and Policy Analyst Matthew Guariglia) and MuckRock (Co-founder Michael Morisy, Senior Reporting Fellows Betsy Ladyzhets and Dillon Bergin, and Investigations Editor Derek Kravitz), with further review and editing by Shawn Musgrave. Illustrations are by EFF Designer Caitlyn Crites. The Foilies are published in partnership with the Association of Alternative Newsmedia. For more transparency trials and tribulations, check out The Foilies archives at eff.org.
