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    If You Want Government Drone Documents, Be Prepared to Sue

    Written by

    Shawn Musgrave

    Contributor

    Image: CBP

    From the Federal Aviation Administration, which is managing the nationwide integration process, to federal agencies like the FBI and Border Patrol, which deploy drones, to local police departments trying to purchase their own, dozens of officials have gone to great lengths to limit released information about US drone programs to the bare minimum.

    We’re three months into this iteration of the Motherboard-Muck Rock Drone Census and halfway through Sunshine Week, a week of open government advocacy nationwide. Since the Drone Census aims to bring transparency to the integration of unmanned aerial vehicles into domestic airspace, Sunshine Week is an ideal time to sum up just how far we have to go on this front. 

    In short, officials nationwide continue to drag their heels whenever possible when it comes to releasing details about how government agencies are using, regulating, and researching drones.

    The FAA has sandbagged a slew of my freedom of information requests regarding UAVs. This seems to be the FAA’s approach going back to 2012, when the Electronic Frontier Foundation successfully sued for a list of agencies nationwide that had applied for drone authorizations.

    My request to the FAA for drone flight logs has been pending since January 2013, and its records staff currently estimate that they might get me the records in March 2015. To add a pinch more salt, the FAA also considers me to be insufficiently journalist for a fee waiver, and has yet to even acknowledge many of my requests.

    We’ve already ragged on the FBI for its extensive redaction of hard figures from its drone documents, which have only been released in the wake of its own litigation loss to Citizens for Ethics in Washington. One Twitter wordsmith labeled the FBI’s behavior “pathologically anal,” an apt description for the agency’s systematic scrubbing-out of virtually all details on its drone inventory and deployments.

    In one of the only redaction slips so far, the FBI did let loose that it had at least three drones in 2010. While the FBI continues to review documents at the court-mandated rate of 1,500 per month, its releases contain few details that might allow the public to knowledgeably weigh the pros and cons of drone surveillance by federal investigators.

    Where the FBI is a relative newcomer to drone deployments, and claims to have used them on a limited scale, the Bureau of Customs and Border Protection fly them everyday along both the northern and southern borders.

    Where the FBI so far refuses to divulge which drone models it owns, CBP has published fact sheets on its UAV fleet, which consists primarily of MQ-9 “Predator” surveillance models. But CBP has resisted divulging which police departments and partner agencies have asked for Predator flyovers. The agency only released an initial list last year in response to another lawsuit from the Electronic Frontier Foundation, then “discovered” additional agencies in January that it omitted from its initial disclosure.

    More recently, CBP has dodged freedom of information requests on the temporary grounding of its drones following a water crash near San Diego in January. When I requested the grounding order itself, not even the investigative findings, CBP insisted that all documents related to the crash must be withheld.

    Only after I formally appealed did CBP headquarters release the innocuous email telling its flight operations centers to keep all drones on the ground. The email contained no details of the investigation, as CBP initially claimed.

    Like the FAA, Customs and Border Protection has yet to acknowledge a number of my document requests.

    Federal officials aren’t the only ones fond of transparency holding patterns when it comes to drones. Leading the charge among municipal police departments is the New York City Police Department, whose Freedom of Information Law Unit could give lessons in bureaucratic wrangling.

    In January 2013, I submitted my first records request to the NYPD. There had already been some reporting on NYPD’s inquiries to the FAA about drones, but I wanted specifics about the extent to which New York police were exploring their options.

    Oddly, the NYPD denied my request as an “unwarranted invasion of personal privacy.”

    My subsequent appeal was denied on a technicality, as I didn’t get my letter postmarked within the appropriate window. So I submitted a new request in October, which the NYPD rejected as overly broad and lacking specificity.

    Here’s where things get fun. When I pointed out in my appeal that I had outlined five document categories and some twenty specific documents—I’m rarely one for vagueness—NYPD appeals officer Jonathan David responded that he didn’t even have to address the substance of my appeal.

    His reasoning? My previous appeal had failed, and this was a similar request.

    Again, I lost the first appeal on technicality, not based on my arguments in favor of disclosure. I had failed to get that first appeal posted on time, but I fired off the latest appeal letter with weeks to spare.

    But David refuses to budge. And, since New York law does not require agencies to reconsider appeals, my only option moving forward is to file a lawsuit, an option MuckRock is currently exploring.

    Such is the disturbing theme: If you want government documents on drones, lawyer up. Contrary to the principles of disclosure, public scrutiny and informed democracy that underpin open records statutes, far too many officials insist on disclosing the bare minimum when it comes to UAVs.

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