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UIUC-FOIA’s Reliance on Self-Reporting Limits Effective Searches

In my pre­vi­ous post,1 I dis­cussed how the Uni­ver­sity of Illi­nois Urbana-Champaign (UIUC) Freedom-of-Information-Act (FOIA) office rou­tinely asserts its inabil­ity to search the UIUC email sys­tem, or at least an inabil­ity to search more than a frac­tion of that email sys­tem.  Said frac­tion undis­closed of course.

As a result, UIUC-FOIA’s laid out a detailed Stan­dard Oper­at­ing Pro­ce­dure (SOP) for search­ing that only admits that some­one there is autho­rized to ask other peo­ple to do searches, but not 1) what other peo­ple or 2) how or 3) when or on 4) what bases those mys­te­ri­ous oth­ers should gather this crit­i­cal infor­ma­tion.  Or  whether there’s any 5) inde­pen­dent ver­i­fi­ca­tion of those self-reported disclosures.

Now you might think this scheme of self-reporting could just pos­si­bly be ripe for abuse.  And you’d of course be right.

So in this post I offer two exam­ples — one relat­ing to a mys­te­ri­ous “two-pager” doc­u­ment given to the Chan­cel­lor of UIUC, Phyl­lis Wise, by a donor angry about Salaita, a doc­u­ment that, when FOIAed, mys­te­ri­ously seemed to have vanished.

The other exam­ple is one from my many unpleas­ant inter­ac­tions with UIUC-FOIA, in this case their aiding-and-abetting of the use of a UIUC employee of an abbre­vi­a­tion for my name (“AS” for “Andrew Schein­man”) that allowed him to find no doc­u­ments he’d sent relat­ing to me under that set of proxy ini­tials.  This despite the fact that, as I’ll show, I found by sep­a­rate FOIA that there was at least one such doc­u­ment he’d sent refer­ring to “AS” in which he reported my where­abouts and busi­ness activ­i­ties for rea­sons that I will show were (in my opin­ion) com­pletely malev­o­lent and (in my opin­ion) extremely petty.

 

1. Self-reporting and the case of the dis­ap­pear­ing donor document.

As I’ve said before,  at this point I don’t feel like dis­cussing the Salaita affair in detail, the sim­ple syn­op­sis is that UIUC extended an offer of employ­ment to Salaita, and then withdrew/cancelled/violated this offer2 when Salaita tweeted some rather nox­ious com­ments about Israel over the sum­mer of 2014.

FOIAs were filed to get the back­ground on UIUC’s actions, and more par­tic­u­larly the actions of the chan­cel­lor of UIUC, Phyl­lis Wise.  Tum­bled in among all the emails pro­vided was one Chan­cel­lor Wise had sent on 7–24-14 which referred to  “two-pager” doc­u­ment of infor­ma­tion on Salaita:3

FOIAs were then filed with UIUC-FOIA to obtain this “two-pager” doc­u­ment; UIUC-FOIA then did what it appar­ently always does — it sent a request to some­one else (Chan­cel­lor Wise in this case) to find the doc­u­ment.4

And huz­zah, although they huffed and they puffed, nei­ther Chan­cel­lor Wise nor any of her many staff could find this doc­u­ment.  A fact which has now resulted in a law­suit against UIUC-FOIA for non-production of said doc­u­ment.5

Now as sup­port­ive as I am of this law­suit, I’m not sure it’s the best way to go after the miss­ing infor­ma­tion.  Specif­i­cally, I think the law­suit is great in that it raises aware­ness of UIUC’s whole approach to FOIAs — evade, obstruct and, at all costs, don’t pro­vide embar­rass­ing infor­ma­tion.

But at the same time, I that UIUC-FOIA prob­a­bly does have a case here, in that in at least this case they likely really can’t do some­thing sim­ple to obtain the miss­ing doc­u­ment like search the email sys­tem — because the doc­u­ment was never on the email sys­tem.  Not that they can search the email sys­tem — remem­ber, they claim they can’t, or can only search a highly lim­ited part of the email sys­tem6 — but in this case even if they could do that search, they wouldn’t find the doc­u­ment.  And there­fore they’re prob­a­bly on solid ground in say­ing they did what they could, i.e., they tossed it over the fence to the Chancellor’s office and let them do what they wanted with it.7

Below I’ll dis­cuss what’s prob­a­bly a bet­ter exam­ple of likely illicit intent on the part of UIUC-FOIA — illicit intent or at least pre­med­i­tated neg­li­gence.  As for the “two-pager” doc­u­ment, My own feel­ing is that, if Chan­cel­lor Wise indeed can’t find this doc­u­ment, why isn’t she reach­ing out to its orig­i­nal source for a copy, which she can then pass on to UIUC-FOIA for redac­tion and pro­duc­tion?  This would cer­tainly demon­strate some desire on Wise’s part to engage in … what’s that word, “civil” dis­course over the Salaita affair?8

But I digress.

 

2. Why UIUC-FOIA’s claimed lack of search abil­ity and SOP lead almost inex­orably to abuses of the FOIA process.

My hideously unsub­tle point in this post is that UIUC-FOIA has, by design, con­structed a sys­tem that invites abuse.  And when I say “invites” I mean puts up neon signs across town with clear instruc­tions on what to do or not do in order to ensure that what­ever nas­ti­ness you’re engag­ing in ends up either exempt from dis­clo­sure or, bet­ter yet, unavail­able for even the most pathetic review for exemption.

Here’s the chain of logic that leads almost inex­orably to this conclusion:

  1. UIUC-FOIA claims an inabil­ity to search the email sys­tem, where most FOIAed doc­u­ments are likely to be found; the inescapable result of this claim is that FOIAs have to be passed off to tar­get sources for those sources’s own self-reported dis­clo­sures of what they may have emailed, and of course of ancil­lary doc­u­ments not present in the email sys­tem;9
  2.  UIUC-FOIA makes clear to the tar­get sources that it pro­vides absolutely no over­sight or ver­i­fi­ca­tion of the infor­ma­tion the sources pro­vide — in fact, UIUC-FOIA ensures this point by pro­vid­ing no such check in its “Stan­dard Oper­at­ing Pro­ce­dure” (SOP) for FOIA responses;10
  3. UIUC-FOIA con­cludes that, since there’s no SOP for out­sourc­ing or val­i­da­tion of infor­ma­tion pro­vided, it has no rea­son to even con­duct the barest-minium of val­i­da­tion of infor­ma­tion they get, and instead just hap­pily throw what­ever they obtain over the fence as a valid FOIA response; and,
  4. Unfor­tu­nately, UIUC-FOIAs behav­ior is appar­ently sanctioned/encouraged/enabled at the high­est lev­els of UIUC, for the sim­ple rea­son that it’s a great way to eas­ily pre­vent the release of infor­ma­tion UIUC doesn’t want released.

And please under­stand, this isn’t just me talk­ing … below I repro­duce the Illi­nois Attor­ney General’s (“AG’s”) office’s 2011 shocker of a quote on this:

“The Uni­ver­sity of Illi­nois stead­fastly refuses to com­ply fully and com­pletely with (Free­dom of Infor­ma­tion Act) laws and to sup­ply the pub­lic with doc– uments it knows are pub­lic,” Ann Spillane, [Attor­ney Gen­eral] Madigan’s chief of staff, said last week. She said the U. of I. is among the agen­cies that “repeat­edly dis­obey the law.“11

 

3. The case of the use­fully obfus­cat­ing proxy initials.

I now offer up a per­sonal exam­ple of this — specif­i­cally, the case of the use­fully obfus­cat­ing proxy initials.

The back­ground is pretty sim­ple — Mr. Jed Tay­lor is the assis­tant direc­tor of the Tech­nol­ogy Entre­pre­neur­ship Cen­ter (“TEC”) at UIUC.12  He’s a smart guy who’s done a lot for UIUC — unfor­tu­nately, to my per­sonal opin­ion he’s also a bit of a tattle-tale to Ms. Laura Frerichs, amongst other things the head of the UIUC Research Park.13  I’ll come to how I reach this opin­ion in a minute — for the moment let’s just accept that he and I are not overly sim­patico with one another.

Due to some events that I attrib­uted to what in my opin­ion was clearly pre­med­i­tated behav­ior intended to affect my abil­ity to work,14 on 3–31-14 I filed FOIA with the UIUC-FOIA office as fol­lows:15

To Whom it May Concern:

I am fil­ing this FOIA request to seek the fol­low­ing information:

1. All emails and all other cor­re­spon­dence from/to Mr. Jed Tay­lor in the last year that con­cern me. Please note that Mr. Tay­lor may refer to me as “AS” in addi­tion to by my full name, there­fore I will expect all doc­u­ments relat­ing to “AS” “AOS” “Andrew” “Andrew Schein­man” etc.

2. For *each* redac­tion, a pin­point cita­tion to the exemption(s) under which this redac­tion is claimed to have been validly made.

3. For all doc­u­ments entirely withheld,

a. For *each* such with­held doc­u­ment, a pin­point cita­tion to the exemption(s) under which the with­hold­ing is claimed to have been validly made;

b. For *each* such doc­u­ment, the length of the doc­u­ment, the sender(s), recipient(s), date of trans­mis­sion, and the date
of receipt.

That same day, Mr. Tay­lor responded to the UIUC-FOIA office’s for­ward­ing my FOIA on to him:16

All well and good; in fact, I’d go so far as to say laud­able, in that Mr. Tay­lor responded with light­en­ing speed to the UIUC-FOIA office’s request, some­thing that cer­tainly deserves praise.  And I also want to make clear that UIUC-FOIA did actu­ally con­vey close to all of the emails that Mr. Tay­lor pre­sum­ably pro­vided them — I haven’t checked but I’d say prob­a­bly roughly 29 of 30 emails.17

But.  Ah well, yes, you knew there was going to be a but, didn’t you.  But …

But, that “AS is bur­den­some” thing.  It would cer­tainly make sense, were it not for the fact that I’d already caught Mr. Tay­lor in fla­grante delicto as it were … specif­i­cally, as I repro­duce below, I’d already obtained evi­dence by sep­a­rate FOIA that Mr. Tay­lor had at least once used my ini­tials “AS” to refer to me in an email of — in my opin­ion18– extremely sus­pect con­tent:19

Now this is sus­pect because why, we might ask, would my where­abouts and activ­i­ties be of suf­fi­cient inter­est to Mr. Tay­lor and Ms. Frerichs that he’d feel it nec­es­sary to report my doings to Ms. Frerichs?

Well, the answer might have some­thing to do with the fact that Mr. Tay­lor and Ms. Frerichs appar­ently didn’t appre­ci­ate the fact that I’d filed a num­ber of FOIAs to obtain infor­ma­tion about the Research Park — obvi­ously I don’t know the state of mind of either per­son, so I don’t make this state­ment of my opin­ion lightly, nor do I make it with­out evi­dence that I think sup­ports it.

Thus we have this state­ment in another email from Mr. Tay­lor:20

Well, ha ha ha … I keep fil­ing FOIA requests, I guess that’s enough to make it nec­es­sary to track my where­abouts?21

 

4. Bad behav­ior begins at the top.

At this point I’d pre­fer to make a tran­si­tion from point­ing out indi­vid­ual bad/questionable behav­iors to point­ing out the ulti­mate at the top.

For UIUC, the top is Chan­cel­lor Wise.  As I’ve said, the Chan­cel­lor could eas­ily obtain another copy of the miss­ing doc­u­ment from the donor she/UIUC won’t name.  This would fit per­fectly with her own claim to the impor­tance of civility:

As a mem­ber of the fac­ulty, I firmly believe that a tenured fac­ulty posi­tion at the Uni­ver­sity of Illi­nois is a tremen­dous honor and a unique priv­i­lege. Tenure also brings with it a heavy respon­si­bil­ity to con­tinue the tra­di­tions of schol­ar­ship and civil­ity upon which our uni­ver­sity is built.22

But wait, there’s more to it than that.  Chan­cel­lor Wise could also use the heavy respon­si­bil­ity of her own tenured posi­tion at UIUC to bring yet more civil­ity to the university.

How?  Why by cor­rect­ing the mis­ap­pre­hen­sion on the part of some frac­tion of its employ­ees that FOIAs are not merely some­thing to avoid answer­ing, but rather an excuse to heap crit­i­cism on the filer(s).

Don’t believe that UIUC employ­ees hold to that posi­tion?  Then let me leave you with this piquant quote from the UIUC-FOIA office itself:23

Where exactly did that “FYI — this is the 6th FOIA in a week that Mr.24 Schein­man has sub­mit­ted” come from?  Is there some limit as to how many FOIAs the UIUC-FOIA office think they ought to be forced to accept before those FOIAs start inter­fer­ing with their real jobs?25

From Dr. Wise’s actions?  From the damage-control that UIUC seems to have been in for … gee, for a good long time?

Wher­ever it came from, it’s cer­tainly not from the Illi­nois legislature’s state­ment of the ratio­nale for the Illi­nois FOIA law, 5 ILCS 140/1:26

Pur­suant to the fun­da­men­tal phi­los­o­phy of the Amer­i­can con­sti­tu­tional form of gov­ern­ment, it is declared to be the pub­lic pol­icy of the State of Illi­nois that all per­sons are enti­tled to full and com­plete infor­ma­tion regard­ing the affairs of gov­ern­ment and the offi­cial acts and poli­cies of those who rep­re­sent them as pub­lic offi­cials and pub­lic employ­ees con­sis­tent with the terms of this Act. Such access is nec­es­sary to enable the peo­ple to ful­fill their duties of dis­cussing pub­lic issues fully and freely, mak­ing informed polit­i­cal judg­ments and mon­i­tor­ing gov­ern­ment to ensure that it is being con­ducted in the pub­lic interest.

The Gen­eral Assem­bly hereby declares that it is the pub­lic pol­icy of the State of Illi­nois that access by all per­sons to pub­lic records pro­motes the trans­parency and account­abil­ity of pub­lic bod­ies at all lev­els of gov­ern­ment. It is a fun­da­men­tal oblig­a­tion of gov­ern­ment to oper­ate openly and pro­vide pub­lic records as expe­di­ently and effi­ciently as pos­si­ble in com­pli­ance with this Act.

Apple pie, moth­er­hood, deep-dish pizza.  Chan­cel­lor Wise, any­thing you’d like to do to dis­sem­i­nate civil­ity from your envi­able fully-tenured position?

 

  1. The UIUC-FOIA office: An absence of writ­ten pro­ce­dures, an office gone rogue. [↩]
  2. No one agrees on which of the three occurred. [↩]
  3. I’m not sure of the orig­i­nal FOIA fil­ing, but I extracted this doc­u­ment as page 206 of the 443 page FOIA Response pro­vided by Phan Nguyen to Corey Robin — see Read­ing the Salaita Papers. [↩]
  4. The clear­est syn­op­sis may be found at Miss­ing Salaita Memo, which pro­vides links to the var­i­ous FOIA fil­ings and responses. [↩]
  5. See, e.g., News-Gazette-11–17-14. For a rather more dis­heart­en­ing dis­cus­sion, see, e.g., Salaita FOIA Suit and some of the links cited therein.  For a copy of the Com­plaint, see Salaita FOIA Com­plaint (pdf). [↩]
  6. This part being so secret they won’t dis­cuss it. [↩]
  7. Noth­ing? [↩]
  8. See Chancellor’s Blog. [↩]
  9. I sup­pose I’m just a cynic for think­ing that, what­ever the small chances there might be of emails being dis­closed, there’s essen­tially no chance at all of dis­clo­sure of doc­u­ments not in the email sys­tem.  Chan­cel­lor Wise’s inabil­ity to find the “two-pager” a case in point. [↩]
  10. See my ear­lier blog post (The UIUC-FOIA office: An absence of writ­ten pro­ce­dures, an office gone rogue.) in which I pro­vided UIUC-FOIAs “writ­ten pro­ce­dure” for FOIAs that they pro­duced in response to my repeated FOIAs to obtain this pro­ce­dure. [↩]
  11. Chicago-Tribune-4–2-11 [↩]
  12. See, e.g., TEC — Mr. Jed Tay­lor. [↩]
  13. Laura Frerichs. [↩]
  14. This is my opin­ion.  I ven­ture to say that it’s much more than an opin­ion, but for legal pur­poses let’s just leave it as an explicit state­ment that it’s my opin­ion, and not at this point a proven fact. [↩]
  15. This FOIA was des­ig­nated FOIA 14–252 by UIUC-FOIA. [↩]
  16. See 14–252.Documents.Final page 1. [↩]
  17. At present it appears at least one email was not pro­vided to me by UIUC-FOIA — I’ve filed a fol­lowup FOIA with them to deter­mine why.  It’s inter­est­ing to me that the title of the miss­ing email sug­gests it’s linked to a repeated mis­state­ment by UIUC legal coun­sel that I want to sue UIUC; my guess is that, if there was some­thing nefar­i­ous going on, it would be that UIUC wanted to obscure this breech of legal priv­i­lege.  But at this point all of this is (mostly) mere spec­u­la­tion on my part.  Stay tuned … [↩]
  18. Again, it’s pru­dent of me to empha­size that it’s only my opin­ion that peo­ple keep­ing track of my where­abouts and report­ing said where­abouts to other peo­ple is … not kosher.  Is that a fact?  Don’t know, again it’s cer­tainly my opin­ion.  A rose is a rose is a rose is a rose.  And an opin­ion is an opin­ion is an opin­ion is an opin­ion. [↩]
  19. As I recall, this email is from the UIUC-FOIA pro­duc­tion 14–134.  Note that I’ve added the red redac­tions as a cour­tesy; the bright pur­ple is sim­ply there to catch the eye.  And because I like pur­ple. [↩]
  20. Note that I’ve added the red redac­tions as a cour­tesy.  This email is from the UIUC-FOIA FOIA pro­duc­tion 14–252. [↩]
  21. Note that I will be per­fectly happy to have my opin­ions on the moti­va­tions of the par­ties involved cor­rected by them.  I am the first per­son to admit I am often wrong; on the other hand, silence does not pro­vide illu­mi­na­tion, now does it?  IMHO. [↩]
  22. See Chancellor’s Blog. [↩]
  23. From the UIUC-FOIA FOIA pro­duc­tion 14–252. [↩]
  24. Strictly speak­ing, it’s actu­ally Dr. Schein­man.  Really, since I have both a Ph.D. and a J.D. it’s Dr. Schein­man, esq.  But that moniker’s just silly. [↩]
  25. I have no idea what those real jobs might be; I do admit that it’s inter­est­ing to me that a lot of them seem also to be involved in PR for UIUC.  Not that that’s a con­flict of inter­est or any­thing. [↩]
  26. Illi­nois FOIA Law [↩]

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