Showing posts with label photograph. Show all posts
Showing posts with label photograph. Show all posts

Thursday, October 7, 2021

RIP Russ Kick, eccentric FOIA champion

With images obtained under the federal FOIA, Russ Kick's "Memory Hole"
catalyzed conversation on the Iraq war. Now archived at the Library of Congress.
The transparency community lost an eccentric hero in September: Russ Kick died at his home in Tucson, Arizona, at age 52.

Kick's passing has been reported in many forums, and he was well remembered by The Washington Post and Seven Stories Press last week.  Nevertheless, I feel bound to add my own recognition of the loss.  A self-described "rogue transparency activist," Kick was a legend in the access community.  I knew him only through email exchanges.  I remember him as consistently eager and obliging at the prospect of rallying a recruit to any one of his many causes.

I'm sorry that the Post obit, by Harrison Smith, is paywalled, because it's a thorough and deserved tribute to a remarkable person who embodied the term "citizen-activist" long before it was fashionable.  Kick was a "FOIA frequent flier" who used the "spear" of access law, as Senator Patrick Leahy recently described the federal FOIA, to investigate the many causes that stirred him, from chemical warfare to animal welfare.

Kick had some real wins, too.  His 2004 publication of photos of coffins returning from the Iraq war stimulated vital public discussions about access, privacy, and, of course most importantly, the war itself.  The Defense Department said the photos were released mistakenly.  Vibrant discussions in my FOI class were fueled by those photos and by other content that Kick collected at his Memory Hole website (archived).  Kick's many and varied collection of FOIA prizes persists, for the time being, at The Memory Hole 2 and its "sister site," AltGov2.

Kick edited "The Graphic Canon."
I don't want to be too narrow in my recollection, nor to whitewash Kick's sometimes bawdy tastes and conspiracy-minded inclinations.  His eclectic libraries of content rescued from digital deletion ranged beyond government records to, as the Post summarized, "classic literature, erotica, food and ancient meditation practices."  His literary talents generated a bibliography of the intriguing and bizarre, including a "disinformation" series that touted conspiratorial revelations on governments and sex.  Meanwhile, he edited stunningly artful representations of classic literature in graphic novelizations.

It would be easy to write off Russ Kick as a quaint sort of crackpot.  The Post quoted Kick aptly describing himself: "'I can't focus completely on any one thing for too long,' he wrote in an online biography. 'My personal brand is a mess.'"

Yet with such volume of productivity in so many veins, with real impact that moved the needle to put the demos back into democracy, there was undeniably genius in the madness.  Russ Kick left the world better off than he found it for what he contributed.  Any of us should be so blessed to have the same said of us when we're gone.

Friday, May 22, 2020

Photo is 'copy,' court has to explain to city, police in state record access case under Arkansas FOIA

Professor Robert. E. Steinbuch at the University of Arkansas Little Rock reports a startling case under the Arkansas Freedom of Information Act (FOIA)—startling because a lawsuit never should have been necessary, much less an appeal.  Professor Steinbuch wrote in opinion in today's Arkansas Democrat-Gazette:
Attorney Ben Motal visited the Little Rock Police Department headquarters to inspect and copy an accident report under the Arkansas Freedom of Information Act (FOIA). The police refused to allow Motal to copy the report by taking a photograph using his cell phone. He sued.
In response, the city filed a motion to dismiss, arguing that a citizen must choose to either inspect, copy, or receive a government record—notwithstanding the metaphysical impossibility of this claim. How can you copy a record without at least somewhat inspecting it—with your eyes closed?
Then, the city argued that a photograph is not a "copy." Remarkably, the trial court judge, Mackie Pierce, agreed. He said that "if the Legislature wanted to give you the right to photograph public records, they could have easily used the word 'photograph.' They didn't. They used 'copy' and 'copying.'"
. . . .
Pierce also dismissed the case because the city relented after being sued, and it provided the records directly to Motal without any need to photograph or otherwise copy them. We see this type of legal manipulation all the time, wherein public entities comply with the law only after being sued and then seek to Jedi-mind-trick their way out of litigation by asserting in court that "there's nothing to see here—move along, move along."
The result too often is that only attorneys and those who can afford attorneys have rights, because they can sue. If you're a regular Joe, you don't have any rights, say the city and the trial judge, because they've orchestrated it that there's no precedent to protect you when the city repeats the same bad acts they did to Motal.
Reversing, the Arkansas Court of Appeals, per Judge Kenneth S. Hixson, ruled in favor of Motal.  Now the city claims it will appeal to the state Supreme Court.  Professor Steinbuch predicts the city will not succeed, despite a dubiously reasoned dissent by Judge Raymond R. Abramson, who would have ruled the case moot ("these are not the droids we're looking for") and parroted the city's argument.  Judge Hixson was an attorney in private practice before going on the bench.  Judge Abramson was a municipal police court judge and a city attorney.

Steinbuch is right in his reasoning and his prediction.  Shame on the LRPD and the City of Little Rock.  They seem to fundamentally misunderstand that a public record belongs to the public.  They are only its custodians.

The opinion piece is Robert E. Steinbuch, "Photo" Finish, Ark. Democrat-Gazette, May 22, 2020.  With University of Arkansas Professor John J. Watkins, Professor Steinbuch and I are co-authors of the treatise, The Arkansas Freedom of Information Act (6th ed. 2017) (excerpt of prior edition at SSRN), which Judge Hixson referenced.

The case is Motal v. City of Little Rock, No. CV-19-344, 2020 Ark. App. 308 (Ark. Ct. App. May 13, 2020), also available from Justia.