Can anyone tell me if there are consequences if third party information, which should be redacted from FOIA documents, is not properly redacted from a FOIA requested document by the agency the document is requested from? Is there any consequence under the Privacy Act or any such thing?
For example, if the DOJ were to, say, somewhat negligently miss a bunch of names on the Conde Nast FOIA request and hand it to Kevin Poulsen, would there actually be any consequences to the DOJ? From the case law quoted, it looks likely if there are any consequences they would be civil damages after anyone might be harrassed, SWATed, hacked, or bodily harmed, That might be cold comfort if you were the new president of MIT. Even colder comfort if you were named in those documents. I might post another post with a philosophical rant on SWATing and the prospect of retaliation implicit in all of this... But, it seems so odd that this is an issue, because my understanding is that MIT has every reason to expect that their staff names should be strictly and thoroughly redacted if everything were on the up and up. Or, this is how I would read: http://www.justice.gov/oip/courtdecisions/exemption6.html Where cases of privacy of redacted records of non-govt third parties that were supported after court *challenge* include: *The court holds that defendant properly invoked Exemption 6 to withhold the names and contact information of agency contracting officers. For one, the court notes that the Ninth Circuit "has held that the possibility of harassment, embarrassment, stigma, and retaliation [among the harms cited by defendants in this case] are cognizable privacy interests under the exemption six precedents." The court comments that the responsive records "abound with examples of contracting officers disclosing their own mistakes" and notes that "defendant points to plaintiff's own statements as additional evidence that the contracting officers... will be embarrassed, humiliated, or possibly harassed if their names and contact information are released in connection with the reported mistakes." The court also finds that defendant's contention that "disclosure of the requested information would have a chilling effect on its employees' willingness to speak with candor in future reports" is also as "valid factor to be weighed in balancing the public and private interests." In terms of the public interest involved, the court agrees with defendant's assertion that because "the [OIG] report and its findings have already been released, and release of the names, titles, and contact information will not further the public good." Accordingly, the court determines that the "invasion of [the employees'] privacy is not warranted" because their "right of privacy is greater than the public interest served by disclosure of their private information."* *Chesterfield Assocs., Inc. v. U.S. Coast Guard, No. 08-4674, 2009 WL 1406994 (E.D.N.Y. May 19, 2009) (Block, J.). Defendant properly withheld the names of its own employees and the contractor's employees who were involved in the bidding process. "[T]he Court perceives no principled basis for concluding that government employees involved in the bidding process for public contracts do not have the same privacy interest [as employees who conduct internal investigations] arising out of the same possibility of harassment or embarrassment." Moreover, "[plaintiff] has offered no evidence to support its assertion that the bidding process was somehow tainted. There is, therefore, no public interest warranting disclosure."* *Harrison v. BOP, No. 07-1543, 2009 WL 1163909 (D.D.C. May 1, 2009) (Friedman, J.). Plaintiff's challenges to BOP's use of these exemptions "reflect a misunderstanding of the law, and his notion that the third person personal privacy exemptions apply only to government employees is incorrect. The personal privacy exemptions . . . require the agency to protect the privacy of any third person identified in the records, and the statute does not except spouses." Plaintiff has failed to identify any interest in release of this information beyond his own personal interest. Similarly, he has failed to make a showing of governmental wrongdoing sufficient to satisfy the Favish standard.* and in http://www.justice.gov/oip/foia_guide09/exemption6.pdf page 449-451 *In addition, individuals who testify at criminal trials do not forfeit their rights to privacy * *except on those very matters that become part of the public record.123 Nor do individuals who * *plead guilty to criminal charges lose all rights to privacy with regard to the proceedings * *against them.124 Similarly, individuals who provide law enforcement agencies with reports * *of illegal conduct have well-recognized privacy interests, particularly when such persons * *reasonably fear reprisals for their assistance.125 Even absent any evidence of fear of reprisals,* *however, witnesses who provide information to investigative bodies -- administrative and * *civil, as well as criminal -- ordinarily are accorded privacy protection. 126 (For a more * *detailed discussion of the privacy protection accorded such law enforcement sources, see * *Exemption 7(C), below.) * All in all a fascinating document. There are lots of interesting examples in there with some really fun stories. John Lennon. Pig farmers from hell. Journalists who won't take no for an answer even when, actually, on a privacy basis, it sounds like maybe they should. Hot stuff. It sure seems to me, that MIT would have no reason to fear. Ripping good read. I got into it. But, IANAL. So it makes me wonder, where among the three parties the weirdness lies... So let me put on my little tin hat here, and let me brainstorm, and let me ask all of y'all to tell me where I am out of line. Because, you know, it's not polite to speculate on these things in public. But this is just an academic exercise, a gedankenexperiment, and so -- it doesn't have to be polite. It just has to be logical. Please, pick my logic apart. I obviously do not understand the legalities and facts, because otherwise, this would not look so odd. Someone in this scenario is behaving badly. Let's treat it as a mystery, and speculate as to whom, logically? Is it Colonel Plum in the Study with a Wrench? - The BAD BEAVER theory (MIT bad actor, DOJ neutral, CN neutral): MIT has been a bunch of bad beavers (beavers being the school mascot) and they want to delay the reveal of their role in charging Aaron as long as possible, even though the FOIA request was expedited by the courts. Except, this is a very ham-handed way to delay -- to put the spotlight on them if that's the case. People are going to be looking twice as hard at the outcomes in regard to their role now. Bad tactics. - The HOSTAGE theory (MIT neutral, DOJ bad actor, CN neutral): Postulate that the DOJ wants to delay the FOIA request at any cost, possibly interminably -- this would not be out of step with many precedents in prior government cases. One way to delay further is to slip to MIT who has already be SWATed that if they don't cooperate in delaying tactics, the FOIA documents might include some improperly redacted references to MIT staff. This of course would be done in a way that could not be reported credibly. On a responsible basis, MIT would have to take it seriously though, and would have to file a motion. - The COLLUSION theory (MIT and DOJ bad actors, CN neutral): Neither MIT nor DOJ are enthused about their roles being revealed and are colluding on bouncing delays back and forth until the cows come home. This produces less damage control than the actual content of the FOIA requested documents, presumably, even after redaction. This might take seeing a next step to evaluate. There are variations of any of these that assume that Conde Nast has some clue as to what is going on, but is playing for ratings. To the best of my knowledge we've heard nothing from the MIT internal inquiry on Aaron. This might be a great time to find out how that's progressing. (Kevin P, have you heard anything from that quarter, since you're tracking this?) I have no special knowledge of any of this. I'm just spinning out the model as though it were a mystery, with fog of war. Risk assessment. Trust models (which would tell me, trust no one involved, heh!) I'm an avowed chauvinist (hey, I'm honest -- I don't have a rat on my finger but I do have a beaver tattooed at least metaphorically on some part of my anatomy, you can speculate where) but also a friend of the truth first and foremost. It makes me sad and wary that we've heard nothing from the investigator from the Media Lab regarding the independent internal report... The integrity of the situation comes first -- no entity is above criticism or examination -- and transparency protects the integrity of the 'Tute on a continuing basis. No Pompeias here. So, what do you think...? yrs, -- Shava Nerad [email protected]
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