
Image: Electronic Frontier Foundation
The Foilies 2022
Each spring the Shepherd Express’ alternative media partners, the Electronic Frontier Foundation and MuckRock, serve up The Foilies, tongue-in-cheek “awards” for government agencies and assorted institutions that stand in the way of access to information. Our goal is to identify the most surreal document redactions, the most aggravating copy fees, the most outrageous retaliation attempts, and all the other ridicule-worthy attacks on the public's right to know.
The Rip Van Winkle Award
FBI
Last year, Bruce Alpert received records from a 12-year-old FOIA request he filed as a reporter for the Times-Picayune in New Orleans. Back when he filed the request, the corruption case of U.S. Rep. William Jefferson, D-New Orleans, was still hot — despite the $90,000 in cash found in Jefferson’s cold freezer.
In 2009, Alpert requested documents from the FBI on the sensational investigation of Jefferson, which began in 2005. In the summer of that year, FBI agents searched Jefferson’s Washington home and, according to a story published at the time, discovered foil-wrapped stacks of cash "between boxes of Boca burgers and Pillsbury pie crust in his Capitol Hill townhouse.” Jefferson was indicted on 16 federal counts, including bribery, racketeering, conspiracy and money laundering, leading back to a multimillion-dollar telecommunications deal with high-ranking officials in Nigeria, Ghana and Cameroon.
By the time Alpert got the 83 pages he requested on the FBI’s investigation into Jefferson, Alpert himself was retired and Jefferson had been released from prison. Still, the documents did reveal a new fact about the day of the freezer raid: another raid was planned for that same day, but at Jefferson’s congressional office. This raid was called off after an FBI official, unnamed in the documents, warned that while the raid was technically constitutional, it could have “dire” consequences if it appeared to threaten the independence of Congress.
In a staff editorial about the extreme delay, The Advocate (which acquired the Times-Picayune in 2019) quoted Anna Diakun, a staff attorney with the Knight First Amendment Institute at Columbia University: “The Freedom of Information Act is broken.” We suppose it's better late than never, but never late is even better.
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The Clear Bully Award
Clearview AI
Clearview AI is the “company that might end privacy as we know,” claimed The New York Times’s front page when it publicly exposed the small company in January 2020.
Clearview had built a face recognition app on a database of more than three billion personal images, and the tech startup had quietly found customers in police departments around the country. Soon after the initial reports, the legality of Clearview’s app and its collection of images was taken to court. (EFF has filed friend-of-the-court briefs in support of those privacy lawsuits.)
Clearview’s existence was initially revealed via public records requests filed by Open the Government and MuckRock. In September 2021, as it faced still-ongoing litigation in Illinois, Clearview made an unusual and worrying move against transparency and journalism: it served subpoenas on OTG, its researcher Freddy Martinez, and Chicago-based Lucy Parsons Labs (none of which are involved in the lawsuit).
The subpoenas requested internal communications with journalists about Clearview and its leaders and any information that had been discovered via records requests about the company.
Government accountability advocates saw it as retaliation against the researchers and journalists who exposed Clearview. The subpoena also was a chilling threat to journalists and others looking to lawfully use public records to learn about public partnerships with private entities. What’s more, in this situation, all that had been uncovered had already been made public online more than a year earlier.
Fortunately, following reporting by Politico, Clearview, citing “further reflection about the scope of the subpoenas” and a “strong view of freedom of the press,” decided to withdraw the subpoenas. We guess you could say the face recognition company recognized their error and did an about face.
Whose Car is it Anyway? Award
Waymo

Image: Electronic Frontier Foundation
The Foilies - Waymo
Are those new self-driving cars you see on the road safe? Do you and your fellow pedestrians and drivers have the right to know about their previous accidents and how they handle tight turns and steep hills on the road?
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! A California trial court ruled in late February that Waymo gets to keep this information secret.
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 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.
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.
“Just FYI—I am working with Big Ten staff to move the conversation to secure Boardvantage web site we use for league materials,” Mark Schlissel, then-President of the University of Michigan, wrote his colleagues. “Will advise.”
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 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, 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/issues/foilies.