Public Defender Beth Bourdon on Government Accountability and the FOIA Process
Interview by Erin Merl
We spoke with Beth Bourdon, a public defender and Freedom of Information Act (FOIA) lawyer known for her work with journalists Ken Klippenstein and Talia Lavin. Bourdon talks about FOIA, past and current cases, criminal justice during COVID-19 and being a progressive in Florida.
This interview has been edited for brevity and clarity. You can listen to the full interview at the link above.
RIFT: Tell us a little bit about your background and how you got interested in law.
Beth Bourdon: I had a professor when I was in undergrad who really got me into it. I had worked at a law firm as a receptionist and while I was there I was like, “You know, these guys aren't as smart as I thought they were, I could do this." So when I was an undergrad I had a professor who was a public defender and we would hang out after class and have a couple of beers and I really got into it because she would talk about how she's the only person that her client has when the State of Florida has the resources of the entire State of Florida to prosecute these people. That's where I first really got into it.
RIFT: You’re a public defender but you're also working as a FOIA lawyer for journalist Ken Klippenstein. Could you describe what the Freedom of Information Act is for those that may not be familiar and talk a bit about what exactly a FOIA lawyer does?
BB: Essentially the Freedom of Information Act is the way that citizens can put a check on government and see what these agencies are up to by requesting records from whatever agency is holding them. You don't have to have a lawyer submit your request for records and you also don't have to have a lawyer do an appeal if the agency decides that there's some issue, but you do need a lawyer once it gets to a stage where you have to go to court over the records. That's where normally a lawyer would come in but I do a little bit more for Ken so that he can focus on writing articles. I submit requests that he comes up with and then if there is an issue that has to be appealed, I do an appeal. We've got our third lawsuit going right now so we're pretty excited about that.
RIFT: How long have you been working with Ken and how did you two connect in the first place?
BB: Ken posted something on Twitter sometime in late 2018 I think, talking about trying to get records from the feds, and it was related to something where I felt like maybe he could get around the feds by trying to get documents from the local law enforcement. So I had posted a reply essentially saying, “Hey, you know, maybe you can do an end run around the feds.” That interested him and we started discussing situations where perhaps local law enforcement would have the things that the feds won't give him. Then I had a case as a public defender in 2019 where I was having difficulty getting my client's records from ICE. At the time Ken was interested in starting to sue these agencies and he said, “Would you be willing and are you able to file a lawsuit on my behalf?” It just happened to go perfectly with what I needed to do for my client because it was a death penalty case and we need those records for mitigation. So I thought, “You know, this will be perfect to start this way!" And that's how I ended up as a lawyer suing on his behalf and Talia Lavin’s.
RIFT: What’s it been like working with him? You can be honest—Ken don’t listen to this.
BB: It’s sort of like Bring Your Child to Work Day every day. There's some sort of toddler fit and there’s some sort of situation where there's just a repeated, “Why, why, why?!” And it doesn't matter what I say, it's never good enough, but it's also super fun. He's such a nice person and it's a great time.
RIFT: I want to talk about some of the cases that you’ve worked on. In 2018 journalist Talia Lavin was singled out by ICE’s Twitter account after she mistakenly compared a cross shaped tattoo on one of ICE's officials to Nazi iconography. She quickly deleted it but ICE tweeted a press release the next day calling her out by name which resulted in her getting death threats, antisemitic attacks, and she ended up resigning from The New York Times. Last year you worked with Ken and Talia on a FOIA request for documents from ICE relating to their public affairs division. What was that experience like and what did you discover from the documents you received?
BB: It was really frustrating. We took the time to make sure that we made the request as narrow as possible while seeking out everything that they could possibly have. We submit it and then ICE's response was just baffling. Somehow they took it as us requesting an alien file and they bounced the request to another division within the Department of Homeland Security. And so Ken replied back, “Hey, this doesn't involve an alien file could you please process our request?” And we just never got a response again. So then we filed the lawsuit and it took a long time to get to where we are today because they delayed getting us records, when they gave us records they had over redacted, and so we had to keep going back and saying, “Hey, you can't take these redactions that you're claiming. You need to un-redact all of this stuff.” Then that delays the next production of documents because they have to un-redact the first set. We went through this like three times with them. It was very heavy handed with the redactions.
One thing that I've learned that was surprising is that they were equally concerned that it could be an Iron Cross so as they’re emailing when it first happened they were very concerned about it and they had mentioned “We have this guy on all of these documents for us. We need to really take a look at this.” So to put her on blast as they did through an official government account when they also had the same concerns and she immediately took it down and apologized is just extraordinary.
RIFT: There were already concerns that there were white supremacists in ICE, right?
BB: Right, within ICE, within CBP, the military. It was all starting to come to light that this was the environment that it was in. I've just never seen an official government account come down on a citizen like that. I had never seen anything like it before and I'm pretty sure ICE did something similar to another citizen a month or two later about a raid on a church. It was just incredible and at the end of the documentation that we received they seemed kind of proud of the impressions that their tweet about Talia had gotten. It’s just disgusting.
RIFT: They were excited about social media impressions and getting it out there then?
BB: Yes. It’s just unbelievable.
RIFT: Is that something you're still working on? What was the outcome of that?
BB: Technically we are sort of still working on it. We have all of the documents that we’re going to get, we have all of the redactions cleared up that we wanted cleared up, so we won't be getting any more documents or anything like that. The case is technically dismissed but it's still being held open for 60 days because ICE is responsible for attorney fees on that case so that's the only thing that’s keeping it technically open right now.
RIFT: You and Ken are currently suing the Florida Department of Law Enforcement for failing to respond to FOIA requests about their intelligence practices during the George Floyd protests. Can you tell us more about what's happening with that case?
BB: Ken had submitted a request to the Florida Department of Law Enforcement mid July and then he updated the request in August. There hadn't been any response to either of those two requests and then the request went to a fusion center which the Florida Department of Law Enforcement runs the fusion center—
RIFT: What is a fusion center for those that maybe don’t know?
BB: A fusion center is a Department of Homeland Security creation but it's run by the State, so after 9/11 they wanted a better way for government and private partners and local law enforcement to all be able to communicate about terror threats so they came up with these fusion centers. A lot of people might know about them from the BlueLeaks incident (I think it was over the summer? I don't know this year is so long I can’t even keep track of it.) All of the BlueLeaks stuff came from a lot of fusion centers but there's somewhere in the vicinity of 70 of them across the United States. Every state has at least one fusion center, Florida happens to have 8.
The Florida Department of Law Enforcement runs these fusion centers so in October one of the fusion centers in Florida gave Ken what he was looking for and all of a sudden we were like, “Oh my God, this finally worked, something finally went right!” So based on what we got from that one we did a new request and we said, “Hey, here's exactly what we're looking for.” And still no response. So we filed suit on November 30th, we had our initial hearing that we're past the burden of “Was our complaint properly filed?” and “Do they have to answer it?” So now, yes, they are being ordered to answer it. They have to provide their answer to us by Monday and what they're answering is my allegation that “You've denied us access to public records by taking an unduly long amount of time.” And so they're going to answer back and I will assume that they will say something along the lines of “The amount of records that you've asked for are a lot and you know the most recent request was in mid October.” But we want the same documents that we've been asking for since July. So the same search you should have started in July should have resulted in documents already.
RIFT: It sounds like they're basically just putting it off. Is that something that happens a lot? Just trying to find ways to avoid ever getting you the documents?
BB: Constantly. I would say about half the time they even acknowledge that they got the request. Most of the time the things that I ask the Florida Department of Law Enforcement for on my criminal cases I don't get for about six to eight months so I don't expect them to ever answer in a timely manner and they're supposed to. The only way that anyone can force them to actually do what they're supposed to do is to just sue them into compliance.
RIFT: When you put in a FOIA request how long do they technically have to respond to you?
BB: With the federal FOIA requests they have twenty business days to make a determination as to “Yes we have records and here's how we're going to give them to you.” Or “Yes we have records but we believe they're exempt for this reason.” That would be a determination. That doesn't happen. I'm lucky if within twenty days they give some sort of indication that they've received the request. They can ask for an extension of up to ten more business days.
There’s one where I think Ken requested something in 2018 and they just replied and said we're invoking a ten day extension. It’s two years ago!
RIFT: That’s a long ten days!
BB: It really is. In Florida there isn't any set amount of time. It just has to be one that’s reasonable. The attorney general sort of has a guideline — if you’re law enforcement you should try to get these things done within seven days. There's no hard and fast rule. It’s totally based on the circumstances. But you only need five business days for them to have that before you can sue them for it so you might as well call it five days if you wanted.
RIFT: Earlier you had talked about redactions and I saw that Ken posted on Twitter recently about the FBI's National Threat Priorities list. The document that he got under FOIA was almost entirely redacted whereas the one that got leaked to him showed all except one of the threats was unclassified. Are you pursuing legal actions for excessive redactions?
BB: We haven't done that yet. We didn't have the need to do that with the ICE lawsuit because at that point I was dealing with an assistant United States attorney and he was dealing with ICE’s attorneys so we were in a much different position and I could just complain constantly to the United States attorney who was tired of hearing me. The hard part is how do you know before going into court that they have been heavy handed with these redactions and they’ve redacted things that they aren't entitled to redact? You have to kind of guess from the content around it and when you have a whole entire blacked out page how do you even guess? It’s really difficult. You have to pick and choose when we decide to do one of those. It'll be coming but it hasn't happened yet.
RIFT: Are there any government agencies that are more difficult to work with than others?
BB: I would say State and the FBI are the biggest thorns in my side. The things that I ask them for I know that they have them and they just keep claiming that either the search is too broad or they don't know what I'm talking about. Like State denied a request that I had to appeal acting like they don't know what a diplomatic cable is and so my appeal I'm like essentially, “Have you ever heard of Wikileaks?” Because you know, how are you going to tell me you don't know what I'm asking you for? It’s ridiculous. So it's a lot of stuff like that and frankly I sort of think they do it just to delay having to get the documents to make me have to appeal so they have more time.
RIFT: In your time doing this work are there any cases in particular that have really stuck with you? Good or bad or both?
BB: There was one that I was super happy that it worked, and that it worked in a timely manner. Ken had done a story about a missing Marine. The family had initially made it seem like “Oh this poor kid, he's missing, we need help finding our son, he's a good kid.” Meanwhile, what it turned out to be was that he had intentionally not gone back to the army and he was going to somehow stop these child traffickers at the border or something along those lines and he was very heavily armed. The FBI was unwilling to confirm it and we went and did the end run around the FBI by going to the cops (or maybe it was NCIS that refused to confirm it) but regardless, we went to local law enforcement and got some documents from them and in there was confirmation that everything Ken’s sources had told him was true. It was just really satisfying to have it—number one—work, and—number 2—that it confirmed everything that we already knew.
RIFT: Since Covid-19 happened are there changes that you've noticed in the criminal justice system and are there safety measures in place for people that are currently in prison?
BB: I don’t get a lot of information on people that are in prison unless there's someone who I represented in the past and they've been writing to me, which I do have one woman who has written to me and she's gotten Covid once. She’s super concerned she's going to get it again. She was supposed to have been transferred approximately seven months ago to a different area that was a work camp so that she could start working before transitioning back into society when her sentence is up and they weren't doing transports anymore because of Covid.
I have clients with severe mental health issues that are supposed to go to the state hospital. The state hospital stopped picking up and transporting somewhere around April and then they want anyone that they're now scheduling for pick up to take a Covid test. But, you know, my clients are mentally ill. They don't know, they’re like “Why are you trying to stick a big Q-tip up my nose to test me for something?” They're refusing. It's caused a big mess with transporting people where they need to go so you get someone who's arrested in another county and they just want to be able to take care of their case, they can't take care of their case because one judge in one county doesn't want to touch another judge's case in another county. Trials essentially stopped for about six months and they've picked back up but they've picked up in such a manner that it just doesn't seem safe. In fact, I was subject of a recent news article over a fight that the state attorney and I got in with the judges here over a case.
RIFT: What happened with that?
BB: Well, the state attorney and I could see clearly that where they were going to be positioning the jurors was not six feet apart, which that's a mandate that they must be six feet apart in order to hold this trial. They wouldn't let us measure the chairs, they weren't going to let us into the courtroom. We finally get into the courtroom, we take pictures and measure. I file a motion to continue and then they move the chairs right before my hearing on my motion and then they're like, “Motion denied, you brought no proof, plus the chairs are moved they’re now six feet.” We go back to the court room, we re-measure. No they're not six feet. I file a new motion, they delay hearing my motion again and this time the chief judge and the trial judge are both up in that courtroom moving chairs and measuring and the next day they hold my hearing and they're like, “Oh, no proof, sorry too bad but now we do have to continue it because the state attorney who was in the courtroom at issue has potentially been exposed to Covid because the chairs are too close.” Crazy, but you know there are smaller cases that can go where you don't need a lot of jurors.
I have first degree murder and death penalty cases. We aren't doing any death penalty cases until at least next year but my first degree murders also require a twelve person jury plus two alternates. In Florida you don't always get a twelve person jury. You only get those for capital cases, otherwise you get six, so the court room is well equipped to be able to socially distance out six jurors plus a couple of alternates for a lesser case. So many of those are the ones that tend to clog up the system. Why not just go one up on a bunch of those cases and get them out of the way?
RIFT: That all sounds extremely frustrating. I admire your patience.
BB: Well, and then they had us doing depositions by Zoom. A deposition is where (and not every state has depositions, but Florida does) but it's where I can call in people who are listed as a state witness and I can ask them almost any question I want as long as I can relate it to some issue to the case. We would always do those in person but because of Covid they started trying to have us do those over Zoom and I kept objecting to doing it and everyone kept saying, “Oh you need to do it because we need these cases to be able to pick back up.” So I finally caved and I'm like, “Okay, I will do this one deposition by Zoom." And of course I get the transcript back from it and there is a big block of time missing and it says “…due to a technical Zoom error this portion is…” and like, no one knew at the time it happened. It's extremely frustrating.
RIFT: What is your reaction to some of the election lawsuits coming from the Trump administration right now? I’m really curious to hear a lawyer’s perspective on this.
BB: I’m as qualified as any other Twitter lawyer right now on this. I haven't done election law, so you know as much as I do about these lawsuits but I think they are ridiculous. But what's so infuriating to me is we have rules about what we're supposed to file. We have to file things in good faith, we have to file them believing we have a legal leg to stand on. I think Sydney Powell filed something claiming that there was no date on it and meanwhile all she had done was cropped it so that the date was missing and that is just so unethical and I don't know how there aren't multiple bar complaints and her license stripped from her already. It’s also kind of entertaining. It's a train wreck that I can't look away from—the typos, all of it. It’s embarrassing. Like why would anyone have faith in this legal system ever?
RIFT: You’re pretty progressive, how is it being in Florida and being progressive? Is that hard?
BB: It feels like you are pretty much your own island. The county I’m in is a very blue county but it's all just Libs and none of them understand why we we don't like Biden. I think everyone was pushing for Val Demings to get the Vice Presidential nod because Val Demings is from here. She was chief of the Orlando police department and her husband was the elected Orange County sheriff. People have a real fondness for her around here and it was just baffling to them that I could be like, “No I don't support Val Demings.” Why would I? She had incidences of violence on behalf of the police that she never did anything about, you know, so it's hard because they just want to call me a Bernie Bro and and say that I'm being contrarian.
RIFT: What’s coming up next in FOIA lawyer world? Anything you're working on now you're excited about?
BB: We have another lawsuit, it's going to be coming probably in the next couple of days. That one will be against ICE and I think CBP is going to be on it and probably the State department will be on it, so that one's going to be a multiple agency one. I'm really excited about the lawsuit that we just filed because you couldn't script a better lawsuit for Ken. It's about leakers essentially, so that one I'm super excited about. We just filed that Saturday, December 5th so that one is just getting started and I can't wait to see what happens with it.
RIFT: Are you are you able to discuss that more?
BB: Every year crime reports are sent to the Department of Justice of people that are suspected of leaking the unauthorized leaks of classified information. These referrals go to the Department of Justice as a crime report and then the Department of Justice looks those over and some they decide they'll prosecute some they won’t. Their prosecutions increased dramatically beginning in 2009 for the unauthorized disclosure of classified information. Prior to 2009 over the prior 40 years they'd only prosecuted like 3 people for that. We requested the annual number of crime reports referred to them. So in other words, “Tell us how many crime reports you get in 2009, how many in 2010…” And then we also requested the actual reports, and we got no response.
RIFT: This is something that was happening under the Obama administration then.
BB: Yes, it started under the Obama administration and continued on with Trump of course and people have a lot of hope as to what it's going to be under the Biden administration. I don't see where it would change since you know he was equally involved in the Obama administration but I guess we'll see.
RIFT: Do you have any advice or how to’s for activists wanting to file FOIA requests?
BB: There’s a FOIA Wiki that’s just the most amazing Wiki out there. It is super helpful. They just need to make sure that it says that it’s a request under FOIA, they need to make sure they put what records they want, they want to put the way they want to receive the records (like “I want them in an electronic format”). If they qualify for a waiver they want to make sure they put: “I qualify for a fee waiver, you don’t get to charge me and here’s the reason why…” And if they have a way to get it expedited they want to make sure they add that too. All of this is on the FOIA Wiki so they can see it on there. It’s really easy to do. The hardest part is tracking down who you send it to half the time. Anybody that wants help or has a question about it can contact me. I’m more than happy to help anybody that’s trying to do that.
For those of you who’d like to learn more and support the work Beth is doing you can find her on Patreon and Twitter.
