Keeps youth accountable, removes shame and stigma

This story was co-published with MindSite News, a  nonprofit digital news site focused on mental health reporting.

On a late afternoon in December, a 22-year-old youth advocate named Rachel is addressing a jury of her peers on Zoom in Marin County, California. Her client: a teen named Leonel, who was caught with two boys after shooting BB guns from a garage.

The boys said they were shooting bottles in the driveway, but several BBs hit a neighboring home and passing vehicles, causing damage and broken windows, according to a police report. No one was arrested but police cited Leonel and his friends for vandalism.

A virtual room full of teens and young adults listens intently as Rachel talks about how Leonel is changing his life in the aftermath of the incident.

“As you will hear today, Leonel has made some important changes in his life,” she tells the peer team members, who act as jurors and will question the teen about those changes. She instructs them as jurors to focus their questions not on what he did wrong, but on what he’s doing right. (We are identifying Leonel and other youth court participants by their first names to protect their privacy.)

Welcome to Marin County’s Peer Solutions program, a project of Youth Transforming Justice, and one of approximately 1,400 youth courts in the country that serve as alternatives to the traditional juvenile justice system. California has more than 70 such courts, some convening in schools, others in courtrooms or informal community settings.

“We’re not here to punish or stigmatize,” Don Carney, Youth Transforming Justice’s founder and executive director, tells the peer team members. “Every young person is so much more than the dumbest thing they’ve gotten caught for by some authority figure.”

He urges the young participants to remove judgment as they encourage a sense of safety and consider Leonel’s friendships, interests, and strengths. 

The mission of the program and others like it is to counter a trend that became common in the late 1980s of suspending or expelling public school students, especially students of color. Advocacy groups like the ACLU argue that this approach increases absence and alienation from school and increases the risk of arrest and entry into the criminal justice system, fueling the so-called school-to-prison pipeline.

Because more than two-thirds of youth involved in the juvenile justice system have experienced trauma from abuse in their homes or violence in their communities, Peer Solutions combines restorative justice techniques with practices that help youth to feel safe even when facing school disciplinary procedures or criminal charges.

Proceedings used to take place at the Superior Court of California in Marin County before they went virtual during COVID lockdowns. The decision to keep them online stems from an encounter Carney had with an undocumented teenager faced with the choice of school suspension or Youth Court. Surprisingly, he chose school suspension.

“When people like me go near Superior Courts, we tend to disappear and get sent back,” he told Carney. With that, “a lightbulb went off” for Carney as he realized how much fear an actual courthouse can inspire. 

The online program is also more accessible for its participants since transportation to the court is no longer an issue., Like the in-person court, it revolves around accountability. To fulfill its terms, respondents must volunteer with an organization that meets their interests, participate in future gatherings of the court, and take a 12-hour course. The classes teach them how to steer away from drugs and alcohol, how to be a first responder to a peer who has overdosed, and how to manage an encounter with police in ways most likely to protect their rights and their lives. 

This is where the youth really start to trust the program and the staff, Carney says. “We teach them how to talk to an officer in a respectful manner and continue to exercise their civil rights.”

The program also instructs youth on ways to stay grounded if they encounter officers so they don’t feel the need to run.

“First thing, make sure they can see your hands,” Carney says. “As you’re holding your hands up, take three deep cleansing breaths to clear your mind and try to stay still.”

Since its inception in 2004, Peer Solutions says it has diverted 1,300 teens from the traditional juvenile justice system. The vast majority—95%—complete their agreed-upon court tasks, and among those who do, there’s only a 7% rate of recidivism.. Close to 70% of youth who take part are Latino, including a small number of teens who fled from Guatemala as unaccompanied minors. As today’s youth court session begins, Leonel, the “respondent,” is asked by the de facto judge and “facilitator,” retired attorney Marita Daly, to give his version of what happened. Then comes a volley of questions from the peer team and responses from Leonel:

How has the relationship with the people you were caught with changed? 

I no longer have relationships with that group of friends. I stopped talking to them.

How do you feel about what you did?

I feel guilty for being there…

What goal do you have right now? 

Just to get out of school and start working.

Leonel adds that he plans to become a landscaper, and the questions from the “peer team” soon take a different turn.

Teen Court Effectiveness

A randomized-controlled study of 12 middle schools and high schools that used youth courts, compared with 12 schools that didn’t, found that suspensions declined more than twice as much in the schools that started using them. Use of the courts was also “significantly associated with positive changes in school satisfaction” and (seemed also to lead to a reduction in the number of students saying they had friends who were considered “delinquent”), according to the study, published in 2020 in the Journal of School Violence.

The schools with teen courts also saw a 47% drop in bullying versus a 22% decrease in schools without the courts. The authors concluded that the school-based teen courts “have the potential to positively impact youth development.”

But overall, there’s been relatively little research on the effectiveness of teen courts. A 2023 review by the Rand Corporation, “Promising Services for Justice Involved Youth,” included seven youth-court programs. The 2020 study mentioned above had positive results. So did two others that found youth in youth-court programs were less likely to re-offend than those in other diversion programs and had relatively low arrest rates (20% in a year). Yet another found that a teen court was associated with increased substance use and delinquent behavior among boys and no effect on girls. “Overall, there were mixed results on teen courts’ abilities to reduce recidivism and other outcomes,” the Rand report authors concluded.

Back at the Peer Solutions session the “jurors” hone in on another facet of teen courts—accountability

How did the incident affect you? 

I didn’t have any problems with the police [before this happened]. Now I have problems. I have probation. I have a time I have to be home.

Rachel, the advocate, jumps in:

What would you do differently if a similar situation happened? 

I’d leave the place, leave the area – not hang out with them.

Heydi Taay, 17, is now a paid intern with the program and has participated as a “juror.” She understands how nervous youth going through the court can feel, having once appeared at a hearing after stealing another student’s ear pods. She especially identifies with the challenges of youth whose parents lost their jobs during the pandemic.

“They were really hurting that they weren’t able to help their parents,” says Taay. “It really touched me personally, because my parents too had lost their jobs then, and they were having a hard time paying for rent and food.” 

That dynamic is a driving force of the Peer Solutions program, says Meghan Greenwood, a counselor for San Rafael City Schools. She has observed the peer court in action and later ran one at a local middle school. 

What impressed her most “is that they include the students who have been through it as part of the jury,” Greenwood says. They “understand what it’s like to sit in that kind of hot seat. So there’s a lot of empathy.” 

That’s a key element for Eric Olson, director of Marin County’s Juvenile Services Division. “One of my biggest concerns with juveniles is, do they have the capacity for empathy?” The Peer Solutions program, he maintains, is key in developing that.

But the program isn’t just about cultivating empathy; the peer-to-peer element also helps build connections.

“This is a very powerful motivator for adolescents, that sense of being connected to one’s community,” says Keith Cruise, director of clinical training in the Department of Psychology at Fordham University in New York.

Another program tenet is that all youth need a trusted adult in their lives. Having one, according to a recent study, is a protective factor that helps offset the harm a child may experience from adversity in the home or community. Carney insists that every referred youth gets asked if they have such a relationship.

“We now know that resilience is really based on having that trusted adult that you’re willing to take advice from,” Carney says.

Leonel had these trusted adults—his parents—but not every teen does. When they don’t, it often falls to Antonio Zavala, the youth court’s 33-year-old director of programs, to try to fill the void.

A Mexican immigrant, Zavala knows firsthand how the lack of such a presence can impact a teen’s life. When he was 10, his mother decided to escape from Zavala’s abusive, alcoholic father and return to Mexico with him and his two siblings. His father refused to let her take Antonio. 

“That drove a spear through my mom’s heart, and I ended up having to stay with this man whom I had grown to hate,” he says. By his teen years, Zavala had grown into someone “who was not going to run to his room, scared of what my father was going to do to me.”

He served time in juvenile detention, got kicked out of schools, and was sent to the school of last resort for kids who were troublemakers. 

“By that time, I had already been pushed into gangs, I had already found my tribe and there was a lot of violence that I was committing outside of the home,” he says. 

Amidst the chaos and violence, Zavala encountered an adult who earned his trust. It was Carney. He organized outings for Zavala and a group of other teens on probation, all of whom, Zavala says, “had come to internalize that we were failures.” Carney took them out to meals and to play basketball and racquetball.  

“He kind of told us although these schools maybe don’t want you, although you’re on probation, you’re human and you still matter,” Zavala says. 

Through the program, a trauma therapist worked with Zavala during lunchtime, trying to coax him out of the armor he had forged between himself and the outside world. 

“She had the ability to get me to talk about an experience that I just went through and get me to really focus on my reaction to it,” he says. “It helped me better understand who I was and do it in a way that felt safe and comfortable.” 

Growing up in homes filled with chaos from violence or unpredictable stress can put a child’s brain into a constant state of high alert, ready for fight or flight, Carney told the Peer Solutions gathering. 

“When you grow up in those circumstances, it’s a survival asset to know when to fight back, when to disappear,” he says. But, in school or other settings, there’s a downside: “You really quickly get labeled defiant, disruptive and noncompliant…You tend to believe it and internalize it and start acting it out.”

Activities like yoga help young people in the program tamp down their stress and build connections with other youth. It also counts toward community service hours. 

On a recent Saturday, yoga teacher Rayner Needleman walked six participants through a series of breathing exercises, yoga poses, and stretches, then had them pair off. One participant, Sonia, said it helped her relax. 

“I really liked that we were in a small circle with others,” she said through an interpreter. “When I try to do any form of physical activity, it’s hard because I’m by myself and it’s hard to find the motivation.” 

Sonia is almost 16 and loves algebra and mathematics. She came to the United States on her own from Guatemala two years ago. She wasn’t comfortable talking about the reasons for her flight, but she had to leave and now lives with a maternal aunt and uncle. She choked back tears when asked what she misses about her parents, whom she speaks to virtually.

“I liked going for walks with them, just hanging out, going shopping,” she says. “I felt like they really took care of me.”

Smoking in the bathroom landed her a referral to the program and overwhelmed her with fear and worry—until she met her peers and staff. Because of what she endured back home and on her journey to the U.S., the staff worked with her one-on-one rather than asking her to face a roomful of peers.

She also was assigned to work at a food bank, where she learned “to give back to others,” she said. “Seeing people so appreciative of what we’re doing when they receive the food makes me really happy and gives me a sense of purpose.” 

Back at the Zoom session, the peer team returns from a break-out room and outlines the restorative plan that Leonel has already agreed to: He will participate in three rounds of jury duty with the peer team and 20 hours of community service in landscaping. He also will pay $500 in restitution for damage to the cars and the neighbor’s house.

Leonel was given three months to fulfill his plan and participate in Youth Transforming Justice’s harm reduction course. “Next time I see you in this setting, I hope to see you as a peer team member,” says Marita Daly, who acted as a judge. “Good luck to you, and remember, you’re a valued member of the community.”

Published in collaboration with MindSiteNews.

Recognizing the worst in government transparency

It seems like these days, everyone is finding classified documents in places they shouldn’t be: their homes, their offices, their storage lockers, their garages, their guitar cases, between the cracks of their couches, under some withered celery in the vegetable drawer … OK, we’re exaggerating—but it is getting ridiculous.

While the pundits continue to speculate whether former President Donald Trump, former Vice President Mike Pence and President Joe Biden put national security at risk by hoarding these secrets, that ultimately might not be the biggest problem.

What we know for sure is that these episodes illustrate overlapping problems for government transparency. It reveals an epidemic of over-aggressive classification of documents that could easily be made public. It means that an untold number of documents that belong to the public went missing—even though we may not get to see them for at least 25 years, when the law requires a mandatory declassification review.

And then there’s the big, troubling transparency question: If these officials pocketed national secrets, what other troves of non-secret but nonetheless important documents did they hold on to, potentially frustrating the public’s ability to ever see them?

It doesn’t do much good to file a Freedom of Information Act request for records that have mysteriously disappeared.

Misbehavior like this is why we created The Foilies, our annual tongue-in-cheek “awards” for agencies and officials that thwart the public’s right to government information or otherwise respond outrageously to requests for documents and records. Each year, the Electronic Frontier Foundation and MuckRock News, in partnership with the Association of Alternative Newsmedia, publish this list of ne’er-do-wells to celebrate Sunshine Week (March 12-18)—an annual event to raise the profile of the democratic concept of government transparency.

It may be many years before the public learns what secret and not-so-secret documents weren’t turned over by past administrations to the National Archives. But when we do, we’ll be sure to nominate them for the top prizes. In the meantime, we have no shortage of redaction rascals and right-to-know knaves, from agencies assessing astronomical fees to obtain documents to officials who overtly obstruct openness to protect corporate interests. Read on and get to know the 2023 who’s-who of government opacity.

(I’m Not Your) Steppin’ Stone to Transparency Award: Federal Bureau of Investigation

We are all lucky that the FBI is always on the lookout for “left wing innovations of a political nature,” especially those nasty “subliminal messages.” That’s why, in 1967, it sent an informant to a Monkees concert, who reported on the band’s anti-war sentiment to add to the FBI’s growing file on them.

Micky Dolenz, the band’s sole surviving member, is suing for that file under FOIA. As his complaint points out, the FBI spied on many musicians of that era, including Jimi Hendrix and John Lennon.

Dolenz sued after the FBI failed to produce the file beyond the heavily redacted portion that it already published online. The FBI has since provided five more redacted pages, Dolenz’s attorney tells us. Hopefully, this will shed more light on the FBI’s heroic war against Beatles, Monkees and other subversive members of the animal kingdom.

The Redactions Don’t Gitmo Surreal Award: The U.S. Southern Command

The U.S. facility at Guantanamo Bay regularly serves up both insults and injuries. A number of people still held there have been subjected to torture and other inhumane treatment at U.S. “black sites”; many are imprisoned indefinitely; and the Pentagon considers detainees’ artwork to be property of the U.S. government. The whole thing is a bit surreal, but U.S. Southern Command (SOUTHCOM) has more techniques for turning up the dial.

Bloomberg reporter Jason Leopold submitted a FOIA request in 2017 for artwork created by those detained at Guantanamo Bay. SOUTHCOM finally fulfilled the request last spring, and it took its own creative liberties with the release.

To the hundreds of pages of colorful paintings and drawings created by Gitmo prisoners, the military added hundreds of little white redactions. FOIA requires redactions to be very particular and to specifically cite applicable exemptions. It seems there were plenty of very particular elements with which the agency took issue, claiming that amidst trees of leaves and other scenes were materials that were ineligible for release due to personal privacy concerns and the risk that they would betray law enforcement techniques. When prisoners’ art could potentially disclose military secrets, we’re well through the looking glass.

“Gitmo, after 20-plus years, is not only a black box of secrecy,” Leopold said, “but it has its own Orwellian rules when it comes to transparency.”

We Can Neither Confirm Nor Deny the Existence of This Award: National Security Agency

Sometimes agencies will respond to your FOIA request with a stack of documents. Other times, they will reject the request out of hand. But some agencies choose a third route: They tell you they can neither confirm nor deny whether the information exists, because the subject matter is classified, or because a positive or negative response would expose the agency’s hand in whatever intelligence or investigation game they’re playing.

This so-called “Glomar response” is derived from a Cold War-era case, when the CIA refused to confirm or deny to the Los Angeles Times whether it had information about the USNS Hughes Glomar Explorer, a CIA ship that was used to try to salvage a sunken Soviet spy sub.

“The Reporters Committee for Freedom of the Press is studying the prevalence of so-called ‘Glomar’ responses to FOIA requests across the federal government,” RCFP senior staff attorney Adam Marshall told us. “As part of that project, it has submitted FOIA requests (what else) to every federal agency regarding their Glomar volume over a five-year period.”

So far, RCFP has learned that the U.S. Commodity Futures Trading Commission sent four Glomars; the U.S. Department of Energy Office of the Inspector General sent 14; and the U.S. Department of Health and Human Services Office of the Inspector General sent 102.

The NSA came back with an astounding 2,721 Glomar responses over the five-year period. As Marshall noted on Twitter, in fiscal year 2021 alone, Glomars accounted for at least 41% of all the FOIA requests the NSA processed. And so we honor the NSA for being so transparent about its lack of transparency.

The Leave No Coffee Mug Unturned Award: General Escobedo, Mexico

When an agency receives a records request, an official is supposed to conduct a thorough search, not poke around half-heartedly before generating a boilerplate rejection letter. What’s rare is for an agency to send a photo essay documenting their fruitless hunt for records.

That’s exactly how the city of General Escobedo in Nuevo León, Mexico responded to a public records request that the EFF filed for documents related to a predictive policing law under Mexico’s national transparency law. The “Inexistencia de Información” letter they sent included a moment-by-moment photo series of their journey, proving they looked really hard, but couldn’t find any records.

First, the photos showed they were outside the city’s security secretariat building. Then they were standing at the door to the police investigative analysis unit. Then they were sitting at a computer, looking at files, with a few screengrabs. Then they were looking in a filing cabinet.

The next photo almost caused us to do a spit-take: They were looking in the drawer where they keep their coffee mugs—just in case there was a print-out jammed between the tea bags and the stevia. See, they looked everywhere.

Except … those screengrabs on the computer they breezed past were exactly the kind of documents we wanted. EFF appealed the case before the state’s transparency board, which eventually forced Escobedo to release a slideshow and receipts showing the city had wasted more than 4 million pesos on the Sistema de Predicción de Delitos (SPRED) project.

The Wishy-Washy Access Award: Alphabet and The Dalles, OR

The Western United States has been caught in a 20-year megadrought, but when The Oregonian/OregonLive sought records on water usage from the city of The Dalles, the news organization found itself on the wrong side of a lawsuit. The city claimed the data was a trade secret, and filed suit on behalf of Google parent company Alphabet to block the release of records.

Alphabet, like other major tech companies, has increasingly invested in massive data centers that slurp up vast quantities of water to cool off their hardware. How much water, however, was a mystery, and one of pressing concern for locals. One resident told The Associated Press she had seen her well water continue to drop year after year. “At the end of the day, if there’s not enough water, who’s going to win?” she asked. After a 13-month fight, there was something to savor: The city dropped its fight. Alphabet even tried to spin it as a PR win and declared itself a champion of transparency.

“It is one example of the importance of transparency, which we are aiming to increase … which includes site-level water usage numbers for all our U.S. data center sites, including The Dalles,” a spokesperson said at the time.

The data was worth fighting for: The data centers’ water usage had tripled in the past five years, to where it consumes more than a quarter of all water used in the city, according to analysis from Mike Rogoway at The Oregonian/OregonLive.

The Outrageous FOIA Fee of the Year Award: Rochester Community Schools District

This year’s winner for most ludicrous fee assessment takes us to a suburb north of Detroit, where parents were met with a hefty price tag for trying to find out whether the school district was spying on them.

As reported by WXYZ, the parents were part of a Facebook group where they discussed their dissatisfaction with the district’s approach to remote learning. After a local parent sued the district, claiming she was fired because a district official had complained to her employer about her criticism of the district’s COVID-19 policies, these parents began filing public records requests to see if the district was monitoring their social media.

When one parent asked for records to know whether their name was included in any social media monitoring, the district said that to comply with the request, staff would have to search every email ever sent by an employee—a total of 12,115,251 emails. The district told the parent to be prepared to be liable for a whopping $18,641,345 fee, with $9,320,673.73 due in advance. That’s a lot of bake sales.

The Digital Divide Award: U.S. Office of Personnel Management

Strolling through the independent records clearinghouse Government Attic offers a wide range of interesting, useful and refreshingly creative ideas for records to request, such as government agency intranet homepages.

Producing a copy of an intranet homepage should be a pretty easy task for an agency: Open up your browser in the morning; click “Save As”; and, boom—kick back after a job well done. You don’t even need to talk to your colleagues! But after five years of inexplicable transparency purgatory, a lead government information specialist at the U.S. Office of Personnel Management responded curtly to one such request with the following:

“The FOIA does not require agencies to create a record. The records you seek would require the creation of records. Therefore, OPM is unable to provide you any records.” Even odder, the agency’s FOIA log for last year notes the request, but writes that it was closed with “no records,” rather than being rejected. Keep that in mind when calibrating the reliability of FOIA annual reports and other official transparency statistics.

Happily, we can report that other agencies are more digitally adept when responding to these types of requests, even if they do have a maddening tendency to print out the pages and mail them rather than just sending the actual digital files. We can only hope that the Office of Personnel Management manages to get some better-equipped personnel when it comes to understanding that simply copying bits is one of the least-creative acts a computer—or FOIA officer —can do, and they should take these requests as a gift rather than a challenge.

The Bulk Data for Me but Not for Thee Award: Los Angeles Police Department

Police departments have an uncanny knack for being able to fund cutting-edge (if horribly broken) technology to watch the public while only mustering ’90s-era (also horribly broken) technology to help the public watch them back. This appears to be the case in Los Angeles, where the forthrightly named Stop LAPD Spying Coalition found that it was being monitored by the LAPD.

Like any good public watchdog, it filed a records request, in this case for emails that mentioned “Stop LAPD Spying” or “stoplapdspying.” We will make a concession that this is a potentially broad search. It’s not always easy for agencies to search across all departmental emails; sometimes emails are stored in different systems, and so on.

LAPD didn’t seem to have an issue with conducting the search, but, rather, they just had found too much material when they did: “The query resulted in a file(s) that exceeds the maximum gigabyte that our system would allow to export; therefore, we are unable to search for and identify emails responsive to your request.”

LAPD then asked the requester to narrow their request. For better or worse, the reality of public records is that it’s often a negotiation, but if an agency is going to compile more than a gigabyte of emails on an organization dedicated to curbing surveillance, the least the agency can do is have the capability to sift through and export that material. The agency’s response—put bluntly, we talk about you too much to tell you how much we’ve talked about you—would be flattering if it wasn’t both creepy and aggravating.

I Wanted to Clarify That My A** Is Covered Award: White House

Backroom dealers sometimes struggle to keep their deals in the backroom, especially when they inadvertently reveal them in emails that are presumptively public records. That’s when they follow up by saying, “I wanted to clarify that the email I sent was pre-decisional and privileged information,” hoping these magic words will exempt the email from disclosure should anyone file a records request.

On June 23, 2022, a White House staffer revealed to the Kentucky governor’s office that President Joe Biden planned to nominate Chad Meredith as a federal judge the next day. Days later, the White House official then tried to use the follow-up “clarification” email as cover. But the Louisville Courier-Journal got the story, and the Kentucky governor’s office released the emails confirming the nomination plans, despite the weak follow-up email trying to claw them back into secrecy.

The president ultimately scrapped Meredith’s nomination entirely after pro-choice advocates criticized Biden’s apparent backroom trading on judicial nominations with Senate Minority Leader Mitch McConnell. Meredith had defended Kentucky’s anti-abortion laws under the previous Republican governor.

The whole ordeal, which was overshadowed by the Supreme Court overruling Roe v. Wade on the very day Meredith would have been nominated, shows the ridiculous ways officials will try to keep public records secret.

The Transparently Proud of Destroying Public Records Awards: Michael Gableman

The effort to investigate unsubstantiated 2020 election fraud claims in Wisconsin sped past comedy, plowed through farce and fell into ludicrous land. The driver of this ridiculous journey: Michael Gableman, a former Wisconsin Supreme Court justice who was hired by Wisconsin State Assembly Speaker Robin Vos to investigate alleged election fraud.

Gableman’s inquiry has cost taxpayers nearly $2 million, with no evidence of any election wrongdoing disclosed when Vos shut it down and fired Gableman last August.

The probe itself, however, has generated plenty of violations of state public records laws. Gableman’s inquiry is the subject of at least four public records lawsuits. And in the process of responding to public records requests about his election inquiry, Gableman has admitted to routinely deleting records and deactivating an email account he used while working on the probe.

After receiving a records request from American Oversight, someone deleted Gableman’s personal email account, the former justice testified during a hearing in one of the suits. And when questioned about whether he knew who deleted records responsive to a public records request, Gableman was refreshingly honest.

“Did I delete documents? Yes, I did,” he said.

In Gableman’s defense, he believed deleting the records was proper, because in his view, the destroyed records were not part of his election investigation. The problem is that no one can trust Gableman’s judgment, because there is no paper trail to confirm that the records were, in fact, irrelevant to his work. Gableman’s lack of an auditable paper trail to check his work stands in stark contrast to the auditable results of the 2020 Wisconsin election.

For his records destruction and general frustration of the public’s right of access, courts have awarded plaintiffs $163,000 in attorney’s fees and costs in one case, and $98,000 in another.

The Ancient Art of Dodging Accountability Award: Cyber Ninjas

Wisconsin isn’t the only state where we’re recognizing an election “audit” contractor’s misbehavior.

After the audit of the 2020 presidential election in Maricopa County, AZ—which ultimately reaffirmed Biden’s victory—State Senate President Karen Fann tried to save face by claiming that the reason the project spiraled out of control was because the election system was hard to audit, and not because auditing firm Cyber Ninjas might’ve been inexperienced and tilting at windmills. That’s kind of like saying it’s the homework’s fault that the dog ate it.

“As our efforts have clearly shown, elections processes here in Arizona are not designed to be easily audited, unlike every other government process accountable to citizens,” Fann wrote in a statement. “… (W)e look forward to implementing improvements to add ease, authentication, transparency, and accountability to our elections processes in the coming legislative session.”

The Cyber Ninjas’ own work, however, was anything but authenticatable, transparent and accountable, as the group tried to evade legitimate public records requests at nearly every turn.

The nonprofit American Oversight and The Arizona Republic newspaper had to take Cyber Ninjas to court in mid-2021 to demand access to audit records. The firm routinely refused to hand over documents, including communications, despite a court order, leading a judge in 2022 to sanction Cyber Ninjas’ founders $50,000 per day.

“I think the variety of creative positions Cyber Ninjas has taken to avoid compliance with this order speaks for itself,” Superior Court Judge John Hannah said. Cyber Ninjas began handing over records last year, revealing connections between the firm and various election conspiracy theorists and lawyers tied to Trump’s campaign and his efforts to overturn the election.

According to The Arizona Republic, Cyber Ninjas’ fines surpassed $10 million, and the firm closed up shop—and yet they still haven’t learned their lesson. The firm continues to withhold and improperly redact text messages and other correspondence. For example, Cyber Ninjas has withheld communications between CEO Doug Logan and prominent election denier Phil Waldron, claiming the messages are covered by legal privilege. This is clearly the FOIA equivalent of a torinoko, the legendary ninja smoke grenade, since Waldron is not a lawyer at all, and definitely not Logan’s lawyer.

The Transparency Tax Award: Mendocino County

The Foilies regularly recounts outrageous public records fees that seem clearly aimed at discouraging specific records requests. But those are usually one-off efforts aimed at specific requests. This award to officials in Mendocino County, California, is based on their creation of a fee system that appears designed to discourage everyone from requesting public records.

The ordinance lets officials charge you $20 per hour to look for records if you fail to “describe a specifically identifiable record.” So, if you asked for the sheriff’s “Policy 410.30,” you wouldn’t get charged, but if you asked for “all directives, policies and orders related to body-worn cameras,” you might have to pony up hard cash. Even worse, the ordinance says that if you ask for emails or other types of records that “may” include information that needs to be redacted or withheld, the county would charge you $50 or $150 per hour, depending on whether an attorney needs to be involved.

In other words, the ordinance punishes the public for not knowing exactly how the county organizes and stores its records, or what records might contain sensitive information. If you have an encyclopedic knowledge of the county’s systems and how to request records, you may not be charged any search fees. But if you are a normal person who just wants to find out what’s happening in the county, you are probably going to be charged a huge search fee.

Mendocino County’s ordinance is on shaky legal ground. The California Public Records Act does not give state and local government agencies the authority to assess their own search fees, review fees or even fees to redact records. The law only allows agencies to charge the public what it costs to make copies of the records they seek.

But aside from being potentially unlawful, Mendocino County’s fee ordinance is an affront to its residents. It treats all records requests as hostile, resource-wasting inquiries rather than a central mission of any public agency committed to transparency.

The Burn After Reading Award: Immigration and Customs Enforcement

Though it might be surprising, sometimes an agency will fulfill your request—and realize afterward they’d like to hit the undo button. Generally, however, the First Amendment protects your right to keep the records and publish them, even when the government could have originally withheld them.

That’s what happened to the well-known, oft-feared FOIA warrior and journalist Jason Leopold after Immigration and Customs Enforcement (ICE) used the wrong highlighter when they responded to his request for information on Department of Homeland Security (DHS) activity in Portland, OR, in the wake of George Floyd’s murder during the summer of 2020.

Leopold asked ICE for communication and documents from the DHS about the training and placement of DHS personnel in Portland that summer and received a “DHS Component Actions Report” in response. Among the information on the report that ICE later claimed was sensitive enough to warrant a gimme-back: the exact numbers of helmets, crowd-control shields and pepper-spray projectiles that the DHS loaned to the United States Park Police, the police force of the National Park Service.

The Misfire in All Directions Award: Irvington Township

Sometimes you just have to marvel at the hubris of an agency that would prefer to pick unwinnable fights rather than just open up its books.

Irvington Township, NJ started one such berserk rampage in 2021 when it filed a lawsuit against a retired teacher who had gotten in the habit of regularly asking for information about local government operations. The suit claimed her requests were “unduly burdensome, time consuming and expensive” and that the octogenarian had “bullied and annoyed” township administrators.

Then, in a misguided attempt to avoid negative attention, the town sent cease-and-desist letters to NBC reporters who were covering the lawsuit, also accusing them of harassment. Less than a week after the reporters published their story, Irvington Township withdrew the suit.

But it didn’t end there. Curious about how much the lawsuit had cost and who had authorized it, Adam Steinbaugh, an attorney for the Foundation for Individual Rights and Expression (FIRE), filed his own records requests. Irvington Township failed to respond to the request, and Steinbaugh filed a complaint with the New Jersey Government Records Council.

At that point, Irvington Township claimed that Steinbaugh, being from out of state, had no right to the records (false!) and deserved to be referred to law enforcement and criminally prosecuted (no!). Not only were Irvington Township’s arguments frivolous; they backfired: Saber-rattling about vexatious lawsuits against a free speech lawyer is like threatening them with a good time.

The Foilies (CC BY) were compiled by the Electronic Frontier Foundation (director of investigations Dave Maass, senior staff attorney Aaron Mackey, Frank Stanton fellow Mukund Rathi and investigative researcher Beryl Lipton) and MuckRock (co-founder Michael Morisy, data reporter 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.