Coyote Blog

I received some documents the other day as the result of a FOIA request, and as has been my experience in past requests, a lot of stuff is blacked out that I suspect is redacted merely to protect the agency and its managers from embarrassment rather than for reasons actually allowed in the FOIA rules.  Despite President Obama's claims to run the most transparent administration in history, I believe the problems have only gotten worse over the last decade.  The Administration even limited its own inspectors' general access to information  [how the hell does one punctuate the possessive of the plural of inspector general??].

Generally I do not have the time or resources to get to the bottom of these things, but folks in Congress do.  One of the patterns we have observed in the wrangling of Republicans in Congress with the Department of Justice over the last year have been releases of documents that are initially heavily redacted, and then latter re-released with fewer redactions.  The pattern we are finding is that many of the first redactions were not justified under any of the privilege rules that exist.  They were merely things the agency did not want anyone else to know.

My favorite example comes from Eric Felton in the Weekly Standard:

Some of the questionable redactions, by contrast, are charming efforts at bureaucratic butt-covering. Lisa Page, for example, was discussing with Peter Strzok the challenge of having an intimate meeting in Andrew McCabe’s conference room, given the size of his grand new conference table. “No way to change the room,” Page texts in the version provided by Justice. “The table alone was [REDACTED]. (You can’t repeat that!)” Hmmm, what classified, top-secret, national-security information could possibly have been redacted? The blacked out bit, it seems, was a simple “70k.” The DoJ—and can you blame them, really?—didn’t want Congress to know they were in the habit of spending $70,000 on a conference table.

Democrats are having fun noting the hypocrisy (after all the focus in the last election on Hillary's email practices) of Trump Administration members doing official business via personal email.  I will leave them to their fun.**

But I will note that I am a huge supporter of FOIA and government transparency and from the very beginning I criticized Hillary Clinton's use of private email primarily because it was clearly done to evade government transparency laws.  We did not punish her for obvious violations, and we did not punish Gina McCarthy when she used private email as the head of the EPA to avoid public scrutiny of her contacts with environmental lobbying groups.  So we should not be surprised if lots of other people are doing the same thing.  Politicians would love to sweep all their private conversations under the rug if we let them.  We need to start charging people for this crime -- even one high-profile person to start pour encourager les autres would be a start.

** This is an example of the good side of partisanship -- someone is always in opposition.  Engadget never did a single article on Gina McCarthy or other Obama Administration officials evading FOIA through private email accounts, presumably because it was much more sympathetic to that administration.  But it does not like Trump so it is on the case.  Which is fine-- the watchdogs across administrations don't always have to be the same people, they just need to be there.

Princeton, like many top Universities, requires a face to face interview of every candidate.  They do this mostly through their alumni network.  I volunteered for this effort for well over a decade, and it was fun to meet and talk to a lot of bright kids.

However, it was becoming clear to me that Asians, with the same qualifications, had a much worse chance of getting in than other similar kids of other ethnicities.   I started getting Asian kids asking me about this and I had some canned answer from the University to give them, but that answer looked like BS to me.  I felt like I was being asked to lie if I told Asian kids they did not face discrimination in the process.

So I quit.  Princeton is a private institution (though it accepts a lot of public money) so I suppose it can pick candidates any way it wants, but that does not mean I have to act as an agent for them if I disagree with what they are doing.

The WSJ has a follow-up today on a couple of cases being made by Asians against Princeton and Harvard admissions:

In 2006 Jian Li filed a complaint with the Education Department’s Office of Civil Rights after he was denied admission to Princeton University. Mr. Li, who emigrated from China at age 4, had a perfect score on the SAT and graduated in the top 1% of his high school class. He alleged that Princeton violated civil-rights laws banning discrimination on the basis of race, color and national origin. The complaint was initially rejected, but Mr. Li appealed and the government reopened the investigation in 2008. Seven years later, in 2015, the Obama administration, which strongly supported the use of racial preferences in college admissions and obviously took its sweet time reviewing Mr. Li’s case, issued a report exonerating Princeton.

Last year Mr. Blum’s organization filed a public records Freedom of Information Act request with the Education Department to gain access to the same documents that the federal government used to clear Princeton of any wrongdoing. Mr. Blum’s organization represents a group of Asian plaintiffs who are suing Harvard University over its admissions policies. The judge in that case has ordered Harvard to turn over six years of admissions records, and Mr. Blum suspects that the data will show that Harvard is unlawfully capping Asian enrollment.

America’s Asian population has exploded in recent decades, and Asian attendance at highly selective schools with colorblind admissions, such the California Institute of Technology and the University of California, Berkeley, reflects this demographic trend. At Harvard, however, the percentage of Asian undergrads has remained remarkably consistent for an institution that claims race is not a determining factor in who is admitted. Mr. Blum suspects that Princeton engages in similar shenanigans, but the school has been pressuring the Education Department to deny him the information that he requested more than a year ago.

Concerned that the government was finally going to fulfill the FOIA request, Princeton sued the Education Department on March 17 to block the release of the admissions documents. The suit argues that the material being sought is exempt from FOIA, a claim that the government has rejected. The school also maintains that releasing the data would compromise student privacy, and it likened its admissions process to “trade secrets” that, if exposed, would put Princeton at a competitive disadvantage in attracting students.

Don’t believe it. Admissions officers switch schools all the time, presumably taking knowledge of admissions procedures with them, and the criteria used by elite institutions to evaluate applicants is not the equivalent of an iPhone patent. Nor is student privacy an issue since names, addresses and other personal information can be redacted. Mr. Blum’s organization simply wants the number of Asians who have applied to Princeton, their SAT scores and grade-point averages, and other information that the school used to analyze applicants academically.

What really concerns Princeton is a potential discrimination lawsuit. What ought to concern the rest of us is the apparent determination of elite colleges to punish Asians students for their academic success. Asians have long been the forgotten victims of liberal affirmative-action schemes, subject to unwritten “just for Asian” admissions standards that recall the treatment of Jews in the first half of the 20th century. Princeton wants them to shut up about it. Let’s hope they don’t.

I will say that the act of turning down a perfect SAT is not limited just to Asians, so I don't take that as necessarily proof of discrimination.   Harvard and Princeton (and I suppose other Ivies but I really only know something about these two) seem to take a perverse pleasure in turning down perfect SATs.  I don't have the facts, but I wouldn't be surprised if the admit rate for kids with SAT's one notch short of perfect is better than those with perfect SATs.

My evidence of discrimination is based on years of actually meeting the kids, seeing their scores and resumes, and talking to them about their activities and passions -- and comparing who gets in and who does not.  And, of course, one merely has to look at the percentage of kids with Asian heritage at Princeton and compare it to universities like Berkeley that have color-blind admissions systems.

This may be the last message you expected from me, but Obama should pardon Hillary.  If Obama does not, Trump should.

Look, I am a FOIA absolutist.  Long before it came out that Clinton may have had top secret emails on her home server, I wanted to see her punished for her flouting of public accountability laws.  Her whole home-brewed email system was a transparent attempt to evade FOIA, and consistent with her history of attempting to duck transparency (going all the way back to her abortive health care initiative she ran as First Lady).  In addition, I have had it up to here with bogus non-profits that pretend to do charity work, but are in fact merely lifestyle and influence maintenance devices for their principals.  I would love to see the Clinton Foundation investigated (though market forces may take care of that institution on their own, as it is unlikely donors will be sending much money their way now that the Clintons have no prospect of returning to power).

But the optics, and precedents involved, with a winning candidate's administration criminally prosecuting the election's loser are just terrible.  Even if entirely justified, the prosecution smacks of banana republic politics.  And even if it were justified, half the country would not see it that way and next time, when the parties are reversed, as sure as the sun rises in the East there will be folks looking to duplicate the prosecution in the other direction.

The rule of law is seldom helped by ignoring wrong-doing, but in this case I will make an exception.

Postscript:  By the way, what could be a better political FU than having Trump pardon her?   An attempted prosecution could last for years and could lead nowhere.  But nothing leaves the impression of "your guilty" like a preemptive pardon (see Richard Nixon).  From a political point of view Obama should pardon her just to prevent Trump from doing so and getting credit for being a healer.

Quick background:  my company privately operates public parks, making our money solely from the entry fees voluntarily paid by visitors and campers.  We don't get paid a single dollar of tax money.

A major partner of ours is the US Forest Service (USFS), which actually operates more recreation sites than any other agency in the world (the National Park Service has a higher profile and the Corps of Engineers has more visitors, but the USFS is the most ubiquitous).  Despite the USFS being an early pioneer of using private companies to reduce the operating costs of parks and campgrounds, the USFS still has a large number of employees opposed to what we do.  The most typical statement I hear from USFS employees that summarizes this opposition -- and it is quite common to hear it -- is that "It is wrong to make a profit on public lands."

It would be hard to understate the passion with which certain USFS employees hold to this belief.   I discovered, entirely accidentally through a FOIA request my trade group had submitted to the USFS, that a Forest Supervisor in California (a fairly senior person in the USFS management structure) whom I have never met or even had a conversation with circulated emails through the agency about how evil he thought I was.

This general distaste for profit, which is seen as "dirty" in contrast to wages which are relatively "clean" (at least up to some number beyond which they are dirty again), is not limited to the USFS or even to government agencies in general, but permeates much of the public.  As a result, I thought I would describe a conversation I had with a USFS manager (actually this is the merger of two conversations).  The conversation below had been going on for a while discussing technical topics, and we will pick it up when the District Ranger makes the statement highlighted above (a District Ranger is the lowest level line officer in the USFS, responsible in some cases for the land management functions of an area the size of a county.  I have cleaned up the text (I am sure the sentences would not be as well-formed if I had a transcript) but I think this captures the gist of it:

Ranger:  I think it's wrong that you make a profit on public lands

Me:  So you work for free?

Ranger:  Huh?

Me:  If you think it's wrong to make money on public lands, I assume you must volunteer, else you too would be making money on public lands

Ranger:  No, of course I get paid.

Me:  Well, I know what I make for profit in your District, and I have a good guess what your salary probably is, and I can assure you that you make at least twice as much as me on these public lands.

Ranger:  But that is totally different.

Me:  How?

At this point I need to help the Ranger out.  He struggled to put his thoughts on this into words.  I will summarize it in the nicest possible way by saying he thought that while his wage was honorable, my profit was dishonorable, or perhaps more accurately, that his wage paid by the government was consistent with the spirit of the public lands whereas my profit was not consistent

Me:  I'm not sure why.  My profit is similar to your wage in that it is the way I get paid for my effort on this land -- efforts that are generally entirely in harmony with yours as we are both trying to serve visitors and protect the natural resources here.    But unlike your wage, my profit is also a return on the investment I have made.  Every truck, uniform, and tool we use comes out of my profit, whereas you get all the tools you need paid for by your employer above and beyond your salary.  Further, your salary is virtually guaranteed to you, short of some staggering malfeasance.  Even if you do a bad job you likely would just get shunted to a less interesting staff position at the same salary, rather than fired.   On the other hand if I do a bad job, or if one of my employees slips up, or even if some absolutely random occurrence entirely outside my control occurs (like, say, a flood that closes our operations) my profit can completely evaporate, or even turn into a loss.  So like you, I get paid for my efforts here on public lands, but I have to take risk and make investments that aren't required of you.  So what about that makes my profit less honorable than your wage?

Ranger:  Working on public lands should be a public service, not for profit

Me:  Well, I think you are starting to make the argument again that you should be volunteering and not taking a salary.  But leaving that aside, why is profit inconsistent with service to the public?  My company serves over 2 million visitors a year, and 99.9% give us the highest marks for our service.  And for the few that don't, and complain about a bad experience, every one of those complaints comes to my desk and I personally investigate them.  Do you do the same?

Why do I make such an effort?  Part of it is pride, but part is because I understand that my margins are so narrow, if even 5% of those visitors don't come back next year -- because they had a bad time or they saw a bad review online -- I will make no money.  Those 2 million people vote with their feet every year on whether they think I am adequately serving the public, and their votes directly affect how much money I make.  Do you have that sort of accountability for your public service?

Postscript:  Interestingly, though perhaps not surprisingly, the government ranger did not bring up what I would consider the most hard-hitting challenge:  How do we know your profits are not just the rents from a corrupt, cronyist government contracting process.  Two things let me sleep well at night on this question.  The first is that I know what lobbying I do and political connections I have (zero on both) so I am fully confident I can't be benefiting from cronyism in the competitive bid process for these concession contracts.  Of course, you don't know that and if our positions were reversed, I am pretty sure I would be skeptical of you.

So the other fact I have in my favor, which is provable to all, is that the recreation areas we operate are run with far lower costs and a demonstrably higher level of service than the vast majority of recreation areas run by the government itself.  So while I can't prove I didn't pull some insider connections to get the work, I can prove the public is far better off with the operation of these parks in private hands.

Yesterday, the FBI said that Hillary Clinton should not be prosecuted because, though she clearly violated laws about management of confidential information, she had no "intent" to do so.  Two thoughts

• Even if she had no intent to violate secrecy laws, she did - beyond a reasonable doubt - have intent to violate public transparency and FOIA laws.  She wanted to make it hard, or impossible, for Conservative groups to see her communications, communications that the public has the right to see.  In violating this law with full intent, she also inadvertently violated secrecy laws.  I don't consider this any different than being charged for murder when your bank robbery inadvertently led to someone's death.
• If politicians are going to grant each other a strong mens rea (guilty mind or criminal intent) requirements for criminal prosecution, then politicians need to give this to the rest of us as well.  Every year, individuals and companies are successfully prosecuted for accidentally falling afoul of some complex and arcane Federal law.   Someone needs to ask Hillary where she stands on Federal mens rea reform.

Hans Bader submitted a FOIA on October 9 about US Forest Service and Dept. of Agriculture decision-making leading up to the unprecedented shutdown of private operations on US Forest Service land.  I have seen the FOIA results and -- almost laughably -- virtually all of the documents relate to the end of the shutdown, and all of the documents are dated after the date of his FOIA.  In other words, the US Forest Service essentially ignored the documents requested by the FOIA request and submitted a stacks of unrelated documents.

More from Mr. Bader here

This is pretty amazing -- a FOIA and a subsequent string of emails between a USA Today reporter and the Department of Justice.  Like any email string, you need to go to the end and then read up.  Essentially, the DOJ tells the reporter that they have information that undermines the reporter's story but won't tell him what it is.  Instead, they threaten to hold it until after the reporter has published, and then give the information to another media outlet in order to embarrass the reporter, all because the reporter is "biased" which in Obama Administration speak means that he is an outlier that does not dutifully fall in line with the Administration's talking points.

My guess is that this is a cheap bluff to prevent a story from being published that the DOJ does not want to see in the public domain.  Even if it is not a bluff, this is a horrendous approach to releasing information to the public.

Blogging has been light during the holidays, but here are some predictions I made back in 2007 I feel pretty good about (note these were made a year before Obama was elected)

What I will say is that folks who have enthusiastically supported the war should understand that the war is going to have the following consequences:

1. In 2009 we will have a Democratic Congress and President for the first time since 1994.
2. The next President will use the deficits from the $1.3 trillion in Iraq war spending to justify a lot of new taxes
3. These new taxes, once the war spending is over, will not be used for deficit reduction but for new programs that, once established, will be nearly impossible to eliminate
4. No matter what the next president promises to the electorate, they are not going to reverse precedents for presidential power and secrecy that GWB has established.  Politicians never give up power voluntarily.  [if the next president is Hillary, she is likely to push the envelope even further].  Republicans are not going to like these things as much when someone of the other party is using them.

1.  The prediction was 100% correct, and in fact even went further as the donkeys gained a filibuster-proof majority in the Senate, at least for a year.  Though the war likely had little to do with the outcome, which was driven more by the economy

2.  Dead-on.  Five years later Obama still blames the deficit on Bush.  This is no longer true -- Obama has contributed far, far more than Bush to the deficit -- but the Republicans' fiscal irresponsibility during their tenure have robbed them of any credibility in criticizing Obama

3.  Mostly true (and usually a safe bet with government).   Tax increases were deferred for four years due to an economy I had not foreseen would be so bad, but they are coming.  At the time, it seemed logical to blame a lot of the deficit issues on war spending.  Today, though, 1.3 trillion is barely 8% of the debt and is almost trivial to more recent money wasting activities.

4.  Absolutely true.  In spades.  The only thing I missed was I thought Obama might be less likely to go overboard with the whole executive authority and secrecy thing than Hillary, but boy was I wrong.  Obama has absolutely embraced the imperial presidency in a way that might have made Dick Cheney blush.  Accelerated drone war, constant ducking of FOIA and transparency, increased use of treason laws to prosecute whistle blowers, claiming of power to assassinate Americans on the President's say-so, accelerated warrant-less wiretapping, using executive orders to end-run Congress, etc. etc.  And I never guessed how much the media which so frequently criticized  Bush for any expansions in these areas would roll over and accept such activity from a President of their party.

Transparency and accountability are always loved by those out of power but seldom by those in power.  Thus we hear a lot about them on the campaign trail, and then suddenly, once folks are in office, silence.  Two examples today.

First, this unbelievably anti-democratic and egregious proposal

A proposed rule to the Freedom of Information Act would allow federal agencies to tell people requesting certain law-enforcement or national security documents that records don't exist—even when they do.

Under current FOIA practice, the government may withhold information and issue what's known as a Glomar denial that says it can neither confirm nor deny the existence of records.

The new proposal—part of a lengthy rule revision by the Department of Justice—would direct government agencies to "respond to the request as if the excluded records did not exist."

The second story is in the same spirit, of using secrecy to avoid scrutiny and accountability

Sometime in 2012, I will begin the ninth year of my life under an FBI gag order, which began when I received what is known as a national security letter at the small Internet service provider I owned. On that day in 2004 (the exact date is redacted from court papers, so I can’t reveal it), an FBI agent came to my office and handed me a letter. It demanded that I turn over information about one of my clients and forbade me from telling “any person” that the government had approached me....

For years, the government implausibly claimed that if I were able to identify myself as the plaintiff in the case, irreparable damage to national security would result. But I did not believe then, nor do I believe now, that the FBI’s gag order was motivated by legitimate national security concerns. It was motivated by a desire to insulate the FBI from public criticism and oversight.

Since many advocates of anthropomorphic global warming theory have declared the twenty-year-old science to be "settled," then there must not be very much controversy or disagreement in the peer review reader comments to the UN's Fourth IPCC report.  Except, no one seems willing to publicize these comments.  Even US government organizations paid for by taxpayers.  Steve McIntyre is again having to resort to filing FOIA's to get the details of climate research.

Update: It appears that Congress is taking a similar approach to climate research when it comes to openness about earmarks.