Friday, July 27, 2018

Using a FOIA to get information out of the government

Besides our right and ability to vote, which remains under attack, and First Amendment, which has been under attack forever but with greater intensity in the Trump era, the Freedom of Information Act may be democracy’s last stand.

Why was this officer pointing at Manuel Duran?
We filed an FOIA with Homeland Security to find out
                                                                              --Moore Media Images
This is chiefly where major stories have been coming from in this century as governmental sources seem to be inclining toward increasing paranoia mixed with arrogance.

To submit a FOIA – if you hear someone say what sounds like “Foy- ya,” this is what they are talking about – involves several steps but is not terribly hard. It is not so hard as actually getting the government to respond fully, promptly and accurately.

Here is my quickly composed how-to:

To submit a FOIA, or Freedom of Information Act request, AKA Open Records Request, from the city of Memphis, first go here and set up an account.

After establishing an account with your email and password, submit your request. Just type what you want, what you are looking for. Be specific as to time frame, names of anyone you are looking for, etc. You will be asked to attach a document showing who you are and where you live, such as a shot of your drivers license or voter registration card, proving you are a local resident.

Here are two examples, one I am thinking about requesting and one I previously requested:

From City of Memphis, MPD. “Please provide copies of all traffic citations issued on July 6, 2018, between the hours of 4 p.m. and 10 p.m., written by law enforcement officers within the following physical perimeters:

“North of I-240; South of Park Avenue; East of E. Prescott; West of Getwell.”

Here is one I submitted to MPD on May 22 after I had received documents from TN Department of Homeland Security, which I regarded as incomplete, upon this same subject. My objective here was to uncover preemptive targeting of activists by law enforcement.

“Intra-agency and inter-agency communications related to suspected or actual rallies, demonstrations and public political displays the week of MLK50, April 2-April 7, 2018. Agencies and information-gathering and sharing entities shall include all federal, state, city and county, including but not limited to RTCC, FBI, TBI, ATF, JTTF, Fusion Centers, Secret Service, ICE, Dept. of Homeland Security; as well as all video and photographic images, and audio recordings, that may have been recorded by LE between 1:30 p.m. and 6 p.m. on April 3 at or near 201 Poplar Ave. Fulfillment of this request is to be provided digitally and electronically at no cost to the requester.”

MPD’s reply was as follows:

“The City has reviewed your request and has determined that the records requested are exempt from disclosure for the following reasons: Per the custodian, this matter is an open and ongoing law enforcement investigation and pursuant to TN Crim Pro Rule 16, the records are not available at this time. 

“This completes your public records request with the City of Memphis.


“Public Records Office
“City of Memphis”


To request information from the TN Department of Safety and Homeland Security, including the state Fusion Center (aggregator of law enforcement communications), send an email to

He is a staff attorney in the office of Department of Safety commissioner David Purkey.  He is the screener and intake man for FOIA requests.

Here is how I posed my request on April 17:

“All documents of every sort, including but not limited to emails, faxes and reports, pertaining to protests and public demonstrations in Memphis, TN, on April 2 and April 3, 2018; from, to and among all agencies, state, federal and local; and especially pertaining to a “Rolling Block Party” posted on Facebook and including but not limited to these individuals: Keedran Franklin, Hunter Demster, Spencer Kaaz, Yuleiny Escobar and Manuel Duran.”

They are required to respond within 2 weeks – even if their response is, We don’t have it yet. We will have it in 2 weeks. Then, 2 weeks later, you may get another, We don’t have it yet, but we will have it in 2 weeks.  Due to FOIA rules, the government entities receiving the requests are obliged to send updates periodically, even if they are merely stalling and hoping you will give up; or trying to figure out how NOT to get you the documents, or how much to redact.

Here is the story we wrote in DailyKos after getting some heavily redacted emails from OHS

To request documents from a different state agency, go to that agency’s web page. Here is a link to a generic state of Tennessee open records request form.

Here is an “Open Government Guide” for Tennessee. It is prepared by attorneys, reads something like a legal brief (dense and dull), but it is probably a good chapter-and-verse breakdown.

Aaron Sankin, staff reporter at Center for Investigative Reporting, writes “The Hate Report” for Reveal News – and a bunch of other stuff, and he is experienced (more than me) at clawing info out of government scoundrels. I reached out to Aaron recently for advice. He said FBI is the worst to try to get info from and that they have several pending lawsuits against FBI to release info. He said suing them is usually what it takes to pry info from FBI.

Here is what he wrote to me, in the format of a model request with citations:

To Whom It May Concern: 

This is a request under the Freedom of Information Act. I am a reporter seeking all documents and records regarding XXXXXXXX.
More specifically, I hereby request XXXXXXXXX.

Please limit the date range of this search to between XXXXXXXXX and the date when the search for responsive records is carried out.

In addition to the records requested above, I request records describing the processing of this request, including records sufficient to identify search terms, locations and custodians searched, as well as any tracking sheets used to track the processing of this request. 

If XXXXXXXXX uses FOIA questionnaires or certifications completed by individual custodians or components to determine whether they possess responsive materials or to describe how they conducted searches, I also request any such records prepared in connection with the processing of this request.

I seek all responsive records regardless of format, medium, or physical characteristics. In conducting your search, please understand the term “communications” in its broadest sense, to include any written, typed, recorded, graphic, printed, or audio material. I seek records of any kind, including electronic records, audiotapes, videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail messages and transcripts, notes, or minutes of any meetings, telephone conversations or discussions. Our request includes any attachments to these records. No category of material should be omitted from search, collection, and production.

Please search all investigative and non-investigative files. Also, please exclude all news articles and duplicate emails from the search results. 


***In addition, please ensure the FBI searches its case management system (the Automated Case Management System), its administrative records (which hold information from contractors or others—who perform work for the FBI), its Operational Technology Division (which develops and deploys technology-based solutions for the FBI’s intelligence), Records Management Division, email management system, Electronic Surveillance (ELSUR) Data Management System, or any “compliance audits” (also known as “Quality Assurance Reviews”).*** 

You may not exclude searches of files or emails in the personal custody of your officials, such as personal email accounts. Records of official business conducted using unofficial systems or stored outside of official files is subject to the Federal Records Act and FOIA. It is not adequate to rely on policies and procedures that require officials to move such information to official systems within a certain period of time; I have a right to records contained in those files even if material has not yet been moved to official systems or if officials have, through negligence or willfulness, failed to meet their obligations. 

If any potentially responsive records have been destroyed and/or transferred to other agencies or offices, such as the National Archives and Records Agency (NARA), then I request copies of the destruction or transfer slips as well as any other documentation relating to, mentioning or describing said transfer or destruction, to include but not be limited to confirmation that XXXXXXXX has no other copies of said records.

In addition, please note that in conducting a “reasonable search” as required by law, you must employ the most up-to-date technologies and tools available, in addition to searches by individual custodians likely to have responsive information. Recent technology may have rendered XXXXXXXX’s prior FOIA practices unreasonable. In light of the government-wide requirements to manage information electronically by the end of 2016, it is no longer reasonable to rely exclusively on custodian-driven searches. 

Furthermore, agencies that have adopted the NARA Capstone program, or similar policies, now maintain emails in a form that is reasonably likely to be more complete than individual custodians’ files. For example, a custodian may have deleted a responsive email from his or her email program, but XXXXXXX’s archiving tools would capture that email under Capstone. 

Accordingly, I insist that XXXXXXXX use the most up-to-date technologies to search for responsive information and take steps to ensure that the most complete repositories of information are searched. 

Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure, withholding information “only if . . . disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” 

If it is your position that any portion of the requested records is exempt from disclosure, I request that you provide an index of those documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is actually exempt under FOIA.” Moreover, the Vaughn index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Further, “the withholding agency must supply ‘a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant and correlating those claims with the particular part of a withheld document to which they apply.’”

In the event some portions of the requested records are properly exempt from disclosure, please disclose any reasonably segregable nonexempt portions of the requested records. If it is your position that a document contains non-exempt segments, but that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed throughout the document. Claims of non-segregability must be made with the same degree of detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.

Please institute a preservation hold on information responsive to this request.

As a member of the news media, I am seeking this information for dissemination to the general public as part of an effort to examine XXXXXXXXXX. This request is made in the public interest and not for commercial use. 

As such, I am requesting a fee waiver of search and review fees as a member of the news media. 5 U.S.C. § 552(a)(4) (A)(iii).  

If this fee waiver is not granted, please notify me if document retrieval and reproduction costs exceed $XXX.

Please furnish all responsive records in electronic, searchable format delivered to my email address XXXXX@XXXXXX.XXX. If that’s not possible, please send records paper printouts sent to the following address: 


All correspondence regarding this request can be directed to me at XXXXXX or (XXX) XXX-XXXX.

Please be aware that under 5 U.S.C. § 552(a)(6)(A), a FOIA request is considered constructively denied after twenty business days and is subject to litigation on that basis. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. As the law requires, I will also expect you to release all segregable portions of otherwise exempt exempt material. 

I reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. 

If you have any questions, do not hesitate to contact me at (XXX) XXX-XXXX. Thank you for your prompt attention to this request.

Monday, April 23, 2018

Charges dropped against 'street theater' actor who cited ICE prison abuses

Charges were dismissed today against a second defendant who was arrested April 3 while participating in a “street theater” performance dramatizing ICE prison abuses.
Zyanya Cruz: Charges Dismissed   Moore Media Images

Charges of disorderly conduct and obstructing a highway or passageway against Zyanya Cruz were dismissed in Shelby County General Sessions criminal court after attorney Jason Ballenger successfully argued the warrant charging her was defective.

On April 5, charges were dismissed against journalist Manuel Duran, leaving seven of nine defendants remaining from the MLK50 week action. Duran was detained in Shelby County jail even after family members posted bond, and Immigration and Customs Enforcement (ICE) agents picked him up for deportation upon his release.

Police arrest Zyanya Cruz April 3    Moore Media Images
The affidavit citing Cruz stated she was in a group taking part in an "unauthorized event," but it was vague and did not specify what Cruz did exactly to give officers probable cause to arrest her, explained Ballenger, who is working pro bono on behalf of several defendants from the MLK50 week action. The next court appearances for the other defendants are scheduled for various dates in May and June. 

Southern Poverty Law Center attorney Michelle Lapointe, in a press conference last week in Memphis, accused Memphis police and the Shelby County sheriff of cooperating with ICE to arrest and hold Duran. MPD and the sheriff contend they do not cooperate with ICE and do not hold prisoners for deportation.
Journalist Manuel Duran live-streams April 3
Moore Media Images

Duran continues to be held in LaSalle Detention Center, a facility owned by private prison multinational GEO Group Inc., in Jena, Louisiana. Attorneys from Latino Memphis and Southern Poverty Law Center are working on his behalf, with petitions in Louisiana Western District federal court for his immediate release, and in Atlanta immigration court to hear his case.

Duran was the only journalist arrested, among local media and international outlets such as the New York Times, the Guardian and the BBC, which were present at the “Rolling Block Party 2:01 at 201" action to highlight abuses within ICE detention centers. Among other things, the for-profit prisons have been accused in lawsuits of forcing prisoners to labor for pennies a day, then charging them for food, water and toiletries. (The address of the Shelby County Justice Center is 201 Poplar.)  

Activists further were highlighting systemic problems which remain, even 50 years after Dr. Martin Luther King Jr. was murdered in Memphis April 4, 1968, such as a cheap labor economy and the racial wealth gap. 

Answering the hypothetical question, “What would Dr. King do?” to commemorate MLK50, an ICE agent actor was leading 10 female “chained prisoners” across the street. Within 60 seconds after they entered the crosswalk at 201 Poplar, members of MPD’s Multi-Agent Gang Unit (MGU) and Organized Crime Unit (OCU) began making arrests.

The duration of the stop light at the next block east of 201 Poplar, at Poplar and Danny Thomas Boulevard, lasts 51 seconds.

After succeeding at getting Duran's criminal case dismissed, criminal defense attorney Ann Schilling posed this question:

“This was a peaceful demonstration. What would have happened if the police had let them finish walking down the sidewalk?”

Friday, April 20, 2018

Knoxville Police Chief Slams Anti-Immigrant Bills amid Spotlight on Tennessee

Knoxville Police Chief David Rausch says proposed legislation in the General Assembly that would require police to cooperate with federal immigration officials poses numerous problems for law enforcement.

Knoxville Police Chief David Rausch
Photo by Calvin Mattheis Knoxville News-Sentinel
Rausch is the first police chief in Tennessee to respond to a survey request from Citizens Media Resource about HB2315 in the House and its companion bill SB2332 in the Senate. The educational non-profit is polling chiefs of police in Memphis, Nashville and Chattanooga. 

Tennessee made national news this month for a raid on a meat packing plant about 60 miles from Knoxville in East Tennessee which resulted in 97 workers being detained by Immigration and Customs Enforcement (ICE) and for the seizure in Memphis of journalist Manuel Duran after he was arrested by police while covering a "street theater" action to point out abuses in ICE detention centers. 

"I have made legislators from my area aware of my concerns," Rausch said.

Rausch cited potential "racial profiling complaints" and said the legislation would create "unreasonable and improper requirements" on local law enforcement. 

Here is the Knoxville chief's response to our survey: 

Manuel Duran reports minutes before his arrest April 3

"One challenge with the bills as written is that they could potentially create racial profiling complaints by forcing local officers to ask about status. Local officers have no reason or need to inquire about status unless it is during arrest.  Then, it really is not a necessary question as it will be determined in the jail.  

"Currently, the only authority to enforce status is with the Federal Government.  When a person commits a criminal offense they are generally arrested, depending on the level of the offense.  The jail then has to determine who they are and that is where their status will be discovered.  The notification to Federal Authorities is then made.  

"The bills would set unreasonable and improper requirements on local law enforcement.  Another challenge is the bills create a complaint system that is unreasonable and unnecessary.  For example, if a resident calls in that a house next door is harboring undocumented persons and they demand a police response.  We will advise them that unless a crime is or has been committed then we will not respond as we have no authority to do anything about status of an individual.  

"They then can call their legislator and have an investigation opened on the agency, since we did not respond and they could claim we are a 'sanctuary city,' which we are not.  We cooperate with Federal Authorities by apprehending anyone that has an outstanding Immigration warrant on file and make notifications to them.  An investigation into not responding to the scenario given is a waste of resources.  
Memphis Organized Crime Unit officer waves off our camera
as police roughly arrest citizens dramatizing ICE abuses
                                          --Photo by Moore Media Images

"There is nothing a local law enforcement agency can do in this case of a neighbor making that call.  

"Lastly, Tennessee passed a law in 2009 that made it illegal to be a 'Sanctuary City,' so there is no need for this legislation.  It creates unnecessary confusion and extra work that is not necessary."

Knoxville is one of two Tennessee cities -- Memphis being the other -- that has a citizen police oversight board. Unlike Memphis' Civilian Law Enforcement Review Board, Knoxville's Police Advisory and Review Committee (PARC) has autonomous authority to issue subpoena's. PARC and police administration have reported citizen complaints have declined during the board's existence. Rausch said he had reached out to legislators in Knox County to express his opposition. 

The House Finance, Ways and Means committee has the bill on its calendar for Monday, April 23. The bill was on their agenda Wednesday, but the committee did not get around to it.

"The schedule is kind of crazy right now. So, the clerk's office is doing the best they can," said an aide to Rep. Charles Sargent (Brentwood), committee chairman and one of the bill's sponsors. 

HB2315 has 68 sponsors in the House and nine sponsors for its counterpart, SB2332, in the Senate. Of the 22 members of the House Finance, Ways and Means Committee, 14 have signed on as sponsors. 

The caption for HB2315: Immigration - As introduced, prohibits state and local governmental entities and officials from adopting sanctuary policies; authorizes Tennessee residents and members of the general assembly to submit complaints to the attorney general; provides that violations subject entities to ineligibility of state moneys; requires law enforcement agencies to enter into memorandums of agreement with federal officials concerning enforcement of federal immigration laws. - Amends TCA Title 4; Title 7; Title 8; Title 9; Title 38; Title 39 and Title 40. 

Monday, April 9, 2018

Southern Poverty Law Center Joins Legal Action to Free Memphis Journalist; Vigil 6 p.m. Tonight

Latino Journalist Manuel Duran reports from an action, minutes before he was arrested in Memphis
Photo by Moore Media Images
Why did Multi-Agency Gang Unit choose Manuel Duran?   Photo by Moore Media Images
The Southern Poverty Law Center has joined with Latino Memphis to begin the legal battle to fight the deportation of Memphis journalist Manuel Duran.

“SPLC successfully filed a motion to reopen his immigration case,” said attorney Christy Swatzell of Latino Memphis.

The Atlanta Executive Office for Immigration Review, a division of the Department of Justice, will review the motion.

“Latino Memphis and the SPLC plan to give every last effort to fight his deportation, but there are no guarantees,” Swatzell said.

Officer waves away our camera while roughly arresting
Yuleiny Escobar  Photo by Moore Media Images

“It is important to remember that without the Shelby County Sheriff’s Office continued cooperation with ICE, Mr. Duran would not be fighting for his freedom from behind barbed wire, hundreds of miles from his home in Memphis,” Swatzell said.

Meanwhile, supporters are planning a candlelight vigil in Memphis for Tuesday night at 6 at El Mercadito, 3766 Ridgeway Road.


Bill Stegall as ICE agent actor, "prisoner" Yuleiny Escobar
Photo by Moore Media Images
Duran was arrested Tuesday April 3  -- one day before the MLK50 anniversary in Memphis – while wearing his press credentials and reporting outside the Shelby County Justice Center. Duran was covering a “street theater” action against ICE prison abuses. Charges of disorderly conduct and obstructing a highway were dropped by Shelby County prosecutors two days later, but not before Immigration and Customs Enforcement agents filed an “ICE hold,” or detainer warrant, and took him from the Shelby County Jail upon his release.
"Chain gang" of ICE "prisoners"
Photo by Moore Media Images

Duran was fast-tracked for deportation by the Trump administration, which likely has begun targeting journalists among its harsh immigration policies, and sent directly to LaSalle Detention Center in Jena, LA, bypassing the routine steps of being detained in a Memphis facility for a few days, then transported to a facility in Mason, Tennessee, about 30 miles outside Memphis.

Officer grabs Zyanya Cruz
Photo by Moore Media Images
Sources advised us that orders specifically to seize Duran had come from “the top,” meaning high up in Washington. Other reports indicate that the Trump administration is gathering intelligence on journalists who cover political subjects that negatively portray Trump and his policies. We believe it is likely that Duran was targeted while he was on the street – not just after he was arrested – while FBI and other federal agencies were in Memphis for the commemoration of Dr. Martin Luther King Jr.’s murder April 4, 1968.

Mayor Jim Strickland faces an angry crowd
Photo by Moore Media Images
After a chilly, windy march on Saturday April 7 from St. Mary’s Episcopal Church to City Hall, shouts of “Free Manuel” rang out from the crowd as Memphis Mayor Jim Strickland spoke. Strickland was challenged to respond to the arrest of Duran and brutal arrest of three women who were near him. Police pulled their hair, dragged them on the street, twisted their arms and grabbed their breasts in making the arrests.

Strickland did not say a word, and after he was scalded in remarks by Edie Love of Standing Up for Racial Justice, Strickland turned away from the crowd and went inside the warmer confines of City Hall.

Although Duran’s family had posted bond at about 9 Tuesday night, he was held in custody – the only one of nine defendants to not be released after Tuesday’s street theater.  Female actors were chained together and led by an ICE agent actor to call attention to forced labor put upon persons who are imprisoned as allegedly being undocumented immigrants.

Duran was not acting in a disorderly manner or disrupting traffic or anyone, as we personally witnessed, while he filmed actors after they had crossed Poplar Avenue at a crosswalk, then were heading east on the sidewalk.

Defense attorney Ann Schiller gathered video evidence and presented it to the Shelby County District Attorney’s office Thursday morning. The prosecutor agreed that there was not sufficient evidence to prosecute the charge, Schiller said, and the charges were dropped.

Attorney General Amy Weirich, in a rare move, put out a statement about the suddenly high-profile case:

“This office has dismissed misdemeanor charges of disorderly conduct and obstruction of a highway or passageway filed Tuesday against Manuel Duran. There was not sufficient evidence to go forward with prosecution. This ends any legal issues Mr. Duran has with this office." 

Duran was brought from the jail to court on Wednesday morning, but the only “offer” on the table from the prosecutor’s office at that time was a guilty plea. Since there was already a 48-hour detainer warrant in place, Schiller asked to put off Duran’s arraignment until Thursday, reasoning that the additional day to work out a better deal would still come within the 48-hour window.

“He was not even part of the protest,” Schiller said. “He was not rude to officers. He was not fighting them.

“All of a sudden, for some reason, they take him into custody.”

Activists, including the Memphis Coalition of Concerned Citizens, had helped to organize the action to bring attention to private prisons’ profit motives in housing ICE detainees, even allegedly hiring them out for pennies on the day to corporations such as Victoria’s Secret, Sprint and Wal-Mart.

“This was a peaceful demonstration,” Schiller said. “What would have happened if the police had let them finish walking down the sidewalk? I can’t give you a reason why he got taken.”

Schiller and Division 7 Judge Bill Anderson said there appeared to be two plainclothes ICE agents inside the courtroom when Duran’s case was adjudicated.

“We are not holding him on an ICE hold,” Ferrell said Thursday morning before Duran’s case was dismissed. “We are holding him on charges by MPD. We don’t hold people on ICE detainers.” 

After Duran’s case had been dismissed, Farrell said, “I understand there was an ICE hold.” Farrell had failed to mention that when we first spoke. Nonetheless, ICE agents snatched him fairly soon after his case was disposed of, presumably before he would have been processed out of custody under normal conditions.

“There does not appear they (local law enforcement) are required to hold persons on a detainer warrant,” said Swatzell.  “There is nothing that requires them (Shelby County sheriff) to cooperate with ICE.”