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‘There Was a Story Being Told About Why They Were Asking for This Information’ - CounterSpin interview with Ian Head on freedom of information
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Janine Jackson interviewed Ian Head about freedom of information for the May 31, 2019, episode of CounterSpin. This is a lightly edited transcript.
MP3 Link
Center for Constitutional Rights (5/19)
Janine Jackson: We frequently hear calls for transparency from government entities, complaints about a lack of openness from agencies and departments and barriers to access to documents intended by law to be public. And such calls and complaints are well-warranted.
But sunshine on the shrouded actions of the state isn’t so much a quest for knowledge as a tool for change. In other words, we need to keep asking, “Transparency for what?”
A new project seems to be aimed right at that question. The Center for Constitutional Rights has just launched the Open Records Project: FOIA for the Movement. The project is coordinated by Ian Head, senior legal worker at CCR, co-editor of the Jailhouse Lawyers Handbook and a former executive vice president of the National Lawyers Guild. He joins us now by phone from here in town. Welcome to CounterSpin, Ian Head.
Ian Head: Thanks so much for having me.
JJ: Justice advocates of all stripes know we’re kind of in the Hellmouth right now, on many fronts; there’s a lot of work to be done. What is the particular problem, or need, or deficit, that this project is a response to? Why did you think we need to do this, now?
IH: This project really comes out of Center for Constitutional Rights hearing from our grassroots partners and community partners on the ground, about their use of both FOIA, the federal FOIA requests, and state open requests as a really important tool for their campaigns and movement priorities.
And I think, instead of having us at the Center racing around and trying to answer requests when we can, and helping out here and there, creating this new open records project provides a more centralized place that can work on resources that come out of what we’ve been hearing from folks on the ground, and can be used by them, as well as potentially give trainings, connect them with legal resources….
We just put out a guide called FOIA Basics for Activists. And we’re hoping that that’s a helpful resourcefor just getting grounded and starting using FOIA requests, and state open records requests, for organizers and organizations.
We’re looking to hopefully provide online webinars, in-person trainings, additional electronic resources, and connect people to other FOIA experts who are out there. We are definitely not the only people litigating and doing FOIA requests. There’s a significant amount of expertise out there. And I think we just want to create a new point that specifically is targeted as a resource for activists, rather than just, say, journalists or just other groups that might be using FOIA.
JJ: “Journalists, you probably think FOIA requests are about you,” was the lead on a piece in Columbia Journalism Review a couple of years ago. And it actually reported that journalists are just a small fraction, 7.6 percent, of requests under the Freedom of Information Act.
And, in fact, it’s businesses, law firms and individuals who are using FOIA more often, which I think might be surprising to people, a little bit, but the truth is that the gatekeeper journalists are not—although there are examples of journalists using FOIA to tremendous effect, of course—but they are not the main folks using it. So it’s important that other people know how to.
IH: Absolutely.
JJ: Well, where would you like reporters, though, to see themselves in this project?
Ian Head: “The reporters play such a key role in often assisting our movement partners to achieve their goals, reporting on the findings of these requests, and helping shape the narrative that is so important for our grassroots partners and their campaigns.”
IH: The reporters play such a key role in often assisting our movement partners to achieve their goals, reporting on the findings of these requests, and helping shape the narrative that is so important for our grassroots partners and their campaigns, to push forward and reach, whether it’s reach other people in their community or reach the places in power, Congress and others. I think it’s critical that journalists are part of this.
JJ: Yeah, I always say with regard to whistleblowers, whistleblowers can pitch, but reporters have to catch.
And it’s the same for data: If it’s allowed to be accessed, but nobody bumps it with a trumpet, you know, or puts it to use, then the power of the knowledge is kind of squandered. In the case of the whistleblower, that could be their whole life that went into getting this information out, and we can’t just let it lay on the page.
And that’s what I see in this project, of really trying to not just get the information, but use the information to make a difference in the world.
IH: Exactly.
JJ: Talking to media using it, USA Today, for example, has compiled this incredible national database on police officers that have been banned from the profession. It’s information that was kept secret by lots of folks. And they used state open record laws to collect these public records about police conduct.
And they actually have been detailing just how difficult it is. They said, “in state after state, USA Today had to employ the assistance of its lawyers to gain access to the public records, a resource that citizens walking in the door searching for public information often don’t have.”
So the state level, even though the project names FOIA, the state level is really critical here, too, right?
IH: Absolutely. The state level is, especially right now, really critical. And we’ve definitely had certain successes in getting records, and getting records faster, at times at the state level rather than through the FOIA.
JJ: Are there any cases that, for you at CCR, make especially clear the importance of these access laws around things like FOIA?
IH: I mentioned that we’re doing these FOIAs on behalf of, or just supporting FOIA requests from, our grassroots partners. So, one of our partners recently was Color of Change, which is a great organization that does a lot of advocacy around racial justice issues. They have been hearing from their people about the surveillance of black activists, especially around a lot of the protests against police brutality in the last several years.
We did together a FOIA request to DHS and FBI, to get more information about this surveillance. CoC chose to connect with journalists and try to build some press around the request and the litigation itself, so that there was a story being told about why they were asking for this information, the importance of getting this information from the government. So even before we started getting documents, I think it was really amazing to see how CoC strategized around using the request in that way.
And then among the documents we got were a number of scary reports and emails. But one of them was a series of emails that referred to something called, literally, the DHS analysts were calling it the “Race Paper,” that’s how it was referred to in the emails. And we actually had the so-called “Race Paper” produced to us as well, but completely redacted. There was nothing visible except for just a big black square on eight pages of paper. And again, we litigated to try to get at least part of that unredacted.
Ultimately, a judge looked at that, and said that it was a draft paper, and so it couldn’t be released. But the organizing around the litigation, by CoC and others, got a lot of media attention, going back to what we were saying about the importance of journalists. And so there was a lot of bubbling of, “What is this ‘Race Paper’? Why are they hiding it? What is this? Does it connect to the leaked FBI report on so-called ‘Black Identity Extremists’?”
And that has continued and, actually, Rep. Donald Payne, I believe, of New Jersey, in a recent hearing with DHS officials, questioned them about what the “Race Paper” is—in fact, holding up the eight redacted pages in the hearing to say, “Why can’t you tell me what it what this is? Why is there something that’s been produced called the ‘Race Paper’?”
JJ: That’s a great illustration of how sometimes even when you don’t get the information, you get the story. Because the digging reveals something that is it in itself informative.
IH: Absolutely.
JJ: We’ve been speaking with Ian Head, senior legal worker at the Center for Constitutional Rights, and you can find out more about the Open Records Project: FOIA for the Movement at their website, CCRJustice.org.
Thank you very much, Ian Head, for joining us this week on CounterSpin.
IH: Thanks so much.
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