How ALDOT and John Cooper are exploiting the weaknesses of the open records law
The Alabama Public Records Law is a series of laws designed to guarantee that the public has access to the records of government bodies at all levels across the state. But just because the law exists, doesn’t mean it’s easy to navigate, or even helpful for that matter. Alabama’s law, which can be found at statutes 36.12.40-41 and 41.13.1 – 41.13.44 of the Code of Alabama, has some glaring weaknesses that agencies have been exploiting, to hide facts from concerned Alabamians and lawmakers. Just this year we’ve seen the law fail both reporters and a state official. AL.com‘s Kyle Whitmire ran into problems when requesting information from Attorney General Steve Marshall‘s office. He was told his request was not public information: “State law provides that any such records as you request are not subject to disclosure,” Marshall’s public information officer, Mike Lewis wrote. “Section 12-21-3.1-3.1(b) of the Code of Alabama states that ‘Law enforcement investigative reports and related investigative material are not public records. Law enforcement investigative reports, records, field notes, witness statements, and other investigative writings or recordings are privileged communications protected from disclosure.’ Ala. Code SS 12-21-3.1(b) (2012).” Meanwhile State Auditor Jim Zeigler has run into this own issues when requesting public information from the Alabama Department of Transportation (ALDOT). In April, Zeigler sent a first letter to ALDOT Transportation Director John Cooper and ALDOT Chief Counsel William Patty requesting further information about an $87 million state-funded bridge projectin Baldwin County — which would be a second bridge to Orange Beach. Despite the fact he was elected to statewide office, his request went altogether ignored. In July, Zeigler doubled-down on his fact-finding efforts ands sent a second letter to Cooper and Patty requesting the information, giving them a deadline to respond of August 17. Yet, as of Sept. 6, Zeigler’s heard only one thing: crickets. Alabama Today has run it its own share of problems in dealing with ALDOT and information requests. We first reached out to Tony Harris, spokesman for ALDOT, on May 18 with our own questions about the bridge project. He called back that afternoon and promised a response the following week. Flash-forward to May 25 then again June 12, more empty promises of information that never came. Finally on Aug. 24, after previously asking Alabama Today to avoid submitting an official public records request, he tells us that is what we have to do if we want the information. That there are issues being held up in the courts (by the way, they’ve all been resolved) and he’s unable to answer otherwise. Which has left us scratching our heads — Alabama officials are clearly exploiting holes in the Public Records Law and giving Alabamians the run-around as they see fit. Defining public records The Code of Alabama takes the time to define what public records are: As used in this article, the term “public records” shall include all written, typed or printed books, papers, letters, documents and maps made or received in pursuance of law by the public officers of the state, counties, municipalities and other subdivisions of government in the transactions of public business and shall also include any record authorized to be made by any law of this state belonging or pertaining to any court of record or any other public record authorized by law or any paper, pleading, exhibit or other writing filed with, in or by any such court, office or officer. (Ala Code § 41.13.44) Despite a clear definition, the law fails to set specific parameters to make the law work for the good of the people. What the law’s lacking There is no language that states how long the state has to respond to a public records request. Fees are not stipulated by law. One department may charge one fee, while another may charge something entirely different. The Department of Corrections, for example, requires a flat $25 fee for them to begin to process a request. Meanwhile the Secretary of State’s office requires $1.00 per copied page, rather than a flat fee. Not all agencies have a clear employee in charge of requests, thus making tracking down the correct person difficult. There is no defined appeals process when a requestor does not get what they were asking for. This is the first in a series of stories about this issue. Check back frequently for more information.
Rauf Bolden: Call for a Council Records Preservation Act in Orange Beach
The policy process is never a tightly managed affair. Creating a Council Records Preservation Act must be comprehensive, preserving all memos, letters, texts, emails, photos, videos and executive sessions that the Council touches for the historical archive and legacy preservation. Establishing the archive record is vital, letting descendants see how their ancestors wielded power, letting historians write about the achievements of our beach community, letting the documents speak about the government and the governed. Think about how many details have been lost because we do not have the legislative machinery in place to record history, preserving the historical archive during The Great Recession of 2008, The Deep Water Horizon Oil Spill of 2010, the School-Split Referendum of 2014, the Lodging-Tax Increase of 2017, or the Short-Term Rental Ban of 2018, documenting all those events when hard decisions were made is our canvas, adding emails and texts gives color and substance to the public-facing chronicle. Legislation for records preservation must have teeth, codifying public ownership of all Council records, placing the responsibility for the custody and management of incumbent Council records with the Council, requiring that the Council take all practical steps to file personal records separately from Council records, establishing that Council records automatically transfer into the legal custody of the Archivist/City Clerk as soon as the Council Member leaves office. The hard part is writing a policy by which the public may obtain access to these records; specifically, the legislation shall allow for public access to Council records through a Public Records Request. Connectivity by fiber-optic to the archiving server is the first step of the plan, probably requiring network development, building the connection to the city’s hub. Using a virtual server, hosted on the Internet, continuously providing hardware, software and data backups accessed from anywhere on the planet is defendable. This type of web-based service is very common, particularly easy to setup, usually coming with a free trial. It is a secure way to preserve historical records, providing read-only permissions for the public from the administrative portal. The public can request permission by writing to the Archivist/City Clerk, being granted for specific documents for a specific time period, like checking out a library book. Council members and appointed commissioners using their personal phones for government email, texts and recordings is reckless, possibly creating an unwanted legal dilemma. We must change Council’s culture about their government emails and texts. They are not their personal property. Surrendering those emails and texts when they leave office shall be a legislative requirement. We should learn from the book of Hillary Clinton, needing one phone for government and one phone for personal use. The National Archives and Records Administration (NARA) details guidance for records preservation on the Federal level, “The Freedom of Information Act, or FOIA, generally provides any person with the statutory right, enforceable in court, to obtain access to Government information. This right to access is limited when such information is protected from disclosure by one of FOIA’s nine statutory exemptions,” according to their web site (https://www.foia.gov/faq.html). These Federal guidelines are easily amended to fit municipal code if the Council is willing to initiate mandatory-records preservation. I have heard elected and appointed officials say, “These are my emails and texts,” acknowledging government emails and texts are stored on their personal devices. One must assume they are using the governmental address of .gov innocently for their personal business, being a more prestigious point-of-contact than @nomail.com. The scope of Council’s data-retention policy shall be broad by definition, including all the contacts, emails, texts, photos and videos on personal devices, including phones, tablets, and computers. Data must be copied and logged into the digital archive for preservation. Council Members and Planning Commissioners at the City of Gulf Shores use non-governmental email addresses like Gmail, Hotmail or their business accounts, avoiding the .gov extension, minimizing legal entanglements, sending and receiving .gov messages on their personal devices, creating health rather than treating disease. The goal of records preservation is not to inconvenience elected officials and their appointed commissioners, but to preserve the canvas while the paint is fresh, recording the Internet Age as it unfolds. During the Dark Ages (pre-1400s) manuscripts and classical knowledge resided with the monks. When Greek merchants migrated to Venice from Constantinople (1500s), fleeing the reign of Suleiman the Magnificent, bringing their knowledge and artifacts with them, allowed people to see antiquities, books and art that had been lost, sparking the Renaissance. So it is with our time. The Internet provides a renaissance of knowledge in an unprecedented way, freeing intellectual data from the confines of universities, bringing its power to the fingertips of all who seek it. Documenting government during this new renaissance is not only a great opportunity; it is easy to do. Orange Beach has a museum, adding a digital archive section with remote access should be simple. Politically allocating funds and writing policies for historical preservation is a problematic illusion. ••• Rauf Bolden is retired IT Director at the City of Orange Beach, working as an IT & Web Consultant on the Beach Road. He can be reached at: publisher@velvetillusion.com.
Doug Jones introduces bill to open civil rights cold case files, written by HS students
Alabama U.S. Sen. Doug Jones introduced a bill on Tuesday that would mandate the release of government records related to unsolved civil rights cases — a bill written by a group of high school students. Jones worked with a group of students from Hightstown High School in Hightstown, N.J., and their civics and government teacher, Stuart Wexler in drafting and introducing the bill the students first envisioned in their Advanced Placement U.S. Government classroom. Jones says the legislation is necessary because the Freedom of Information Act (FOIA), as implemented, has prevented the timely and adequate disclosure of executive branch records, and congressional records are not subject to public disclosure under FOIA. FOIA documents are also notoriously redacted beyond practical use. The bill, the Civil Rights Cold Case Records Collection Act of 2018, if passed, remedies this problem by requiring the National Archives and Records Administration to create a collection of government documents related to civil rights cold cases and to make those documents available to the public. For Jones, the issue is personal Prior to his time in the Senate, Jones, a former prosecutor, is best known for prosecuting Ku Klux Klansmen responsible for killing four black girls in the 1963 bombing of the 1963 Sixteenth Street Baptist Church in Birmingham as a U.S. attorney. “Having prosecuted two civil rights cold cases in Alabama, I know firsthand the importance of having every available piece of information at your disposal,” Jones said. “This bill will ensure public access to records relating to these cases and will expand the universe of people who can help investigate these crimes, including journalists, historians, private investigators, local law enforcement, and others.” Jones continued, “We might not solve every one of these cold cases, but my hope is that this legislation will help us find some long-overdue healing and understanding of the truth in the more than 100 unsolved civil rights criminal cases that exist today.” In 2007, Jones testified to the House Judiciary Committee in support of the Emmett Till Unsolved Civil Rights Crimes Act that established a special initiative in the U.S. Department of Justice to investigate civil rights cold cases. He spoke about the difficulty of prosecuting these cases so many years after the crimes were committed and pointed to the importance of sharing information in order to find the truth. Jones is not the only one who believes in the importance of his bill. Hank Klibanoff, Director, Georgia Civil Rights Cold Cases Project at Emory University, says if passed it would “have on thousands of families.” “It is hard to overstate the positive impact that Sen. Doug Jones’s proposed Civil Rights Cold Case Records Collection Act would have on thousands of families who, 40 to 60 years later, have no idea how a father, grandfather, aunt or brother came to a violent death in the modern civil rights era,” said Klibanoff. “As a journalist and historian who relies on government-held records in these civil rights cold cases, it’s important to know that our purposes are simple: To learn the truth, to seek justice where there may be a living perpetrator, to tell the untold stories, and to bring closure to families of victims, and find opportunities for racial reconciliation.” The details The Civil Rights Cold Case Records Collection Act of 2018 will: Require the National Archives and Records Administration (NARA) to establish a collection of cold case records about unsolved criminal civil rights cases that government offices must publicly disclose in the collection without redaction or withholding. Establish a Civil Rights Cold Case Records Review Board as an independent agency of impartial private citizens to facilitate the review, transmission to NARA, and public disclosure of government records related to such cases. Read a detailed overview of the legislation here. Watch Jones testify before the House Judiciary Committee in 2007:
AP, other media ask judge to order release of iPhone records
The Associated Press and two other news organizations asked a judge Monday to force the federal government to reveal how much it paid for a tool to unlock an iPhone used by one of the San Bernardino, California, shooters. The news organizations said in a court filing there was “no adequate justification” for the FBI to continue to withhold information on the cost of the tool or the identity of the vendor that sold it. They said their requests were narrowly tailored and, contrary to the arguments of the FBI and Justice Department, did not seek information that would jeopardize national security or be exploited by America’s enemies. “While it is undisputed that the vendor developed the iPhone access tool, the government has identified no rational reason why knowing the vendor’s identity is linked in any way to the substance of the tool, much less how such knowledge would reveal any information about the tool’s application,” lawyers for the news organizations wrote in the filing to the U.S. District Court in Washington. The AP, Vice Media LLC and Gannett, the parent company of USA Today, sued the FBI in September. The news organizations sought to learn more about the mysterious transaction that cut short a legal dispute in which the government won a court order to force Apple Inc. to unlock the work phone of Syed Rizwan Farook, who along with his wife killed 14 people in the December 2015 San Bernardino attack. The FBI had maintained for weeks that only Apple could access the information on its phone, which was protected by encryption, but announced in March that it had ultimately broken or bypassed the company’s digital locks with the help of an unidentified third party. The government has refused to say how it acquired the tool or how much it paid, though FBI Director James Comey dropped a hint in April when he said the cost was more than he would make for the duration of his job— roughly seven years. The Justice Department last month provided some heavily redacted records from the transaction, but withheld critical details that the AP was seeking. The government argued that the information it withheld, if released, could be seized upon by “hostile entities” that could develop their own “countermeasures” and interfere with the FBI’s intelligence gathering. It also said that disclosure “would result in severe damage to the FBI’s efforts to detect and apprehend violators of the United States’ national security and criminal laws through these very activities and methods.” But in their latest court filing, the news organizations said they never sought the sensitive information the FBI has said it wants to protect, such as how the tool worked. They said the government was improperly invoking national security exemptions to the Freedom of Information Act, which they say mandates the release of the information. “Release of this information goes to the very heart of FOIA’s purpose, allowing the public to assess government activity — here, the decision to pay public funds to an outside entity in possession of a tool that can compromise the digital security of millions of Americans,” the lawyers wrote. Republished with permission of The Associated Press.
Hillary Clinton emails: GOP sues, senators press attorney general
Republican senators pressed for more information Wednesday about an FBI investigation into the potential mishandling of sensitive information that passed through former Secretary of State Hillary Clinton‘s private email server, and their party sued for copies of the messages. The Republican National Committee filed two lawsuits in U.S. District Court in Washington over access to electronic messages sent or received by the Democratic presidential candidate and her top aides during her time as the nation’s top diplomat. Both spring from Freedom of Information Act requests filed last year seeking copies of emails and text messages. In court filings, the GOP says it has not received any documents in response to the requests. The GOP litigation brings the total to at least 34 civil suits so far involving requests for federal records related to Clinton’s service as secretary of state between 2009 and 2013. The Associated Press is among those with a pending case at the Washington courthouse. “For too long the State Department has undermined the public and the media’s legitimate right to records under the Freedom of Information Act, and it’s time it complies with the law,” said RNC Chairman Reince Priebus. The State Department has released more than 52,000 pages of Clinton’s work-related emails, but her private lawyers have withheld thousands more that they deemed to be personal communications unrelated to her job. Also left unresolved are questions about how Clinton and her closest aides handled classified information. The AP last year discovered Clinton’s use of the private email server, which had been set up in the basement of Clinton’s New York home by former State Department staffer Bryan Pagliano, for her to use exclusively for her work-related emails while she was secretary. The FBI for months has investigated whether sensitive information that flowed through Clinton’s email server was mishandled. The State Department has acknowledged that some emails included classified information, including at the top-secret level. Clinton has said she never sent or received anything that was marked classified at the time. The inspectors general at the State Department and for U.S. intelligence agencies are separately investigating whether rules or laws were broken. Members of the Senate Judiciary Committee questioned Attorney General Loretta Lynch on Wednesday about media reports that the Justice Department had offered Pagliano immunity from criminal prosecution in exchange for his cooperation. Pagliano previously declined to testify before Congress, citing his Fifth Amendment rights against self-incrimination. Sen. Chuck Grassley, the committee chairman, asked Lynch whether Pagliano’s immunity offer carried over to congressional committees. Grassley, R-Iowa, wants to recall Pagliano to testify if he has received immunity. Lynch declined to answer the question. “We don’t go into details with the agreements that we have with any witness on any matter in ongoing investigations,” the attorney general said. “The consistency with which the department handles ongoing matters, whether they involve a famous last name (or not), is something that we take very seriously,” Lynch said. “We treat them the same, and that is how the public takes confidence in the investigations we conduct.” Lynch also said she had not discussed the email investigation with anyone at the White House and did not plan to do so. Republished with permission of the Associated Press.
Hillary Clinton, aides stressed protecting State Dept info in email
Hillary Rodham Clinton and her aides at the State Department were acutely aware of the need to protect sensitive information when discussing international affairs over email and other forms of unsecure electronic communication, according to the latest batch of messages released by the agency from Clinton’s tenure as secretary of state. The State Department made public roughly 7,121 pages of Clinton’s emails late Monday night, including 125 emails that were censored prior to their release because they contain information now deemed classified. The vast majority concerned mundane matters of daily life at any workplace: phone messages, relays of schedules and forwards of news articles. But in a few of the emails, Clinton and her aides noted the constraints of discussing sensitive subjects when working outside of the government’s secure messaging systems – and the need to protect such information. Senior adviser Alec Ross, in a February 2010 email intended for Clinton, cited frustration with “the boundaries of unclassified email” in a message about an unspecified country, which Ross referred to as “the country we discussed.” The email appears to focus on civil unrest in Iran during the period preceding the Green Movement, when Iranian protesters used social media and the Internet to unsuccessfully challenge the re-election of then-President Mahmoud Ahmadinejad. In an exchange from Feb. 6, 2010, Clinton asks aide Huma Abedin for talking points for a call she’s about to have with the newly appointed foreign minister of Ecuador. “You are congratulating him on becoming foreign minister, and purpose is to establish a personal relationship with him,” Abedin replied. “Trying to get u call sheet, its classified….” In another email from January 2010, Clinton aide Cheryl Mills responds angrily to a New York Times story based on leaked classified cables sent by Karl Eikenberry, the U.S. ambassador to Afghanistan. “The leaking of classified material is a breach not only of trust, it is also a breach of the law,” Mills wrote. Clinton also expressed frustration with the State Department’s treatment of certain ordinary documents as classified. After an aide noted the draft of innocuous remarks about the Israeli-Palestinian conflict was on the State Department’s classified messaging system, she responded, “It’s a public statement! Just email it.” Sent a moment later, the statement merely said that U.S. and British officials would work together to promote peace. “Well that is certainly worthy of being top secret,” Clinton responded sarcastically. All those email conversations with Clinton took place via her private email account, highlighting the challenge the front-runner for the Democratic presidential nomination faces as she struggles to explain her decision to set up a private email server at her New York home. She now says her decision to use a personal email account to conduct government business was a mistake. Government employees are instructed not to paraphrase or repeat in any form any classified material via unsecured email, which includes both the official state.gov email system and the account Clinton ran on her private server. State Department spokesman Mark Toner said Monday none of the information censored in Monday’s release was identified as classified when the emails were sent or received by Clinton, noting the redactions were made subsequently and only prior to the release of the emails under the Freedom of Information Act. In total, the State Department has now released 13,269 pages of Clinton’s emails, more than 25 percent of the total that she turned over from her private server, Toner said. Clinton provided the department some 30,000 emails she categorized as work-related late last year, while deleting a similar amount from her server because she said they were solely personal in nature. Clinton’s use of a private email may have created logistical problems communicating with State Department aides. “Well its clearly a state vs outside email issue,” wrote Abedin in August 2010, after another aide reported missing some messages from Clinton. “State has been trying to figure it out. So lj is getting all your emazils cause she’s on her personal account too.” Despite approving the creation of a relatively complex email system in her home, Clinton seemed puzzled by basic technology. In a July 2010 exchange, Clinton quizzed former staffer Philippe Reines on how to charge the Apple tablet and update an application. Reines asks Clinton if she has a wireless Internet connection, and she replies: “I don’t know if I have wi-fi. How do I find out?” A few of the messages released Monday hint at the ways Clinton’s family was involved in her work at the agency. Following the devastating Haiti earthquake in January 2010, Clinton wrote about her efforts to involve Bill Clinton in the disaster response. After an unnamed party assumed that former President Clinton’s preexisting role as a United Nations envoy to Haiti would sideline him from the reconstruction effort, Hillary stepped in. “I just spent an extra hour explaining the architecture” of the relief organizations, Clinton wrote. “Will fill wjc in on the plane.” Bill Clinton, who is often referred to by his initials “WJC,” ended up as co-chairman of the Interim Haiti Recovery Commission, a body with significant power over reconstruction funds. An email from Chelsea Clinton, addressed to “Dad, Mom,” offers a densely-written, seven-page assessment of conditions on the ground in Haiti based on her “data set and its clear limitations” after she took a four-day trip to the devastated island. “Please do not forward this in whole or in part attributed to me without asking me first,” she writes to her parents, saying she’s “happy to be an invisible soldier.” Republished with permission of the Associated Press.
Probe of Hillary Clinton’s server could find more than just emails
Now that federal investigators have Hillary Rodham Clinton‘s homebrew email server, they could examine files on her machine that would be more revelatory than the emails themselves. Clinton last week handed over to the FBI her private server, which she used to send, receive and store emails during her four years while secretary of state. The bureau is holding the machine in protective custody after the intelligence community’s inspector general raised concerns that classified information had traversed the system. Questions about her use of the server have shadowed her campaign for the Democratic presidential nomination. Clinton again this weekend repeated a carefully constructed defense of her actions, in that she did not send or receive emails marked classified at the time. But her emails show some messages she wrote were censored by the State Department for national security reasons before they were publicly released. The government blacked out those messages under a provision of the Freedom of Information Act intended to protect material that had been deemed and properly classified for purposes of national defense or foreign policy. What hasn’t been released: data that could show how secure her system was, whether someone tried to break in, and who else had accounts on her system. A lawyer for Platte River Networks, a Colorado-based technology services company that began managing the Clinton server in 2013, said the server was provided to the FBI last week. Indeed, many physical details of the server remain unknown, such as whether its data was backed up. In March, The Associated Press discovered that her server traced back to an Internet connection at her home in Chappaqua, New York. A computer server isn’t a marvel of modern technology. Just like a home desktop, the computer’s data is stored on a hard drive. It’s unclear whether the drive that Clinton used was thoroughly erased before the device was turned over to federal agents. If it had been, it’s also uncertain whether the FBI could recover the data. Clinton’s lawyer has used a precise term, “wiped,” to describe the deleted emails, but it was not immediately clear whether the server had been wiped. Such a process overwrites deleted content to make it harder or impossible to recover. An FBI spokesman declined to comment. Investigators who examine her server might find all sorts of information – how it was configured, whether it received necessary security updates to fix vulnerabilities in software, or whether anyone tried to access it without permission. Running a server is akin to her messages being stored inside an office file cabinet. But while a file cabinet only yields the documents stored inside, a server can also offer information about the use of that data over time: Who had access to the filing cabinet? Did anyone try to pick the lock? Did the owner attempt to alter the files in any way? And who was given keys to the building in the first place? Since her server was first installed in 2009, it most likely used a traditional hard disk-based device rather than a newer solid state unit that only has become commonly used in the last two or three years, said computer scientist Darren Hayes. Solid state drives, until recently, were much more expensive than their counterparts for storing lots of data. Forensics experts would then have an easier time retrieving erased data because such older, disk-based servers are not as efficient in deleting material, said Hayes, assistant professor and director of cybersecurity at Pace University’s School of Computer Science and Information Systems in New York. “A hard disk drive is very difficult to manipulate,” he said. “Once you get your hands on a hard drive, there’s a lot you can recover.” Even after files are marked for deletion on a disk, Hayes said, their contents remain on the drive and can be retrieved. Even if the full file is gone, fragments can be pulled off the drive. Sometimes a complete email file even can be found inside other files marked for deletion. Clinton said in March that she had exchanged about 60,000 emails during her four years in the Obama administration, about half of which were personal and deleted. She turned over the others to the State Department, which is reviewing and releasing them on a monthly basis. Last month, the inspector general for the nation’s intelligence community warned that some of the information that passed through Clinton’s server was classified information. It’s generally not possible to forward or cut-and-paste an email marked classified to a private account because classified email systems are closed to outsiders. But it can be illegal to paraphrase or retype classified information from a secure email into an unprotected message sent to a personal address. Hayes said forensics experts could, in most cases, determine whether the server used encryption to transmit emails, which would be important in learning whether her occasional email discussions of classified and sensitive matters might have been vulnerable to hackers and snooping by foreign governments. The server’s internal registry could also provide hints of whether hackers penetrated the server’s security. “They may have deleted a lot of data, but there’s a lot of data that a good forensics team would be able to recover,” he said. Republished with permission of The Associated Press.
