The NY Times headline reads “Hidden Pentagon Records Reveal Patterns of Failure in Deadly Airstrikes” and it outlines a pattern of corruption and lawlessness by our military that was responsible for killing civilians in a war zone.
They were obtained through Freedom of Information requests beginning in March 2017 and lawsuits filed against the Defense Department and U.S. Central Command. To date, The Times has received 1,311 out of at least 2,866 reports — known as credibility assessments — examining airstrikes in Iraq and Syria between September 2014 and January 2018. Requests for records from Afghanistan are the subject of a new lawsuit.
Most of you will never file a FOIA request or make a Public Records Request (PRR) and may think the two are interchangeable. They aren’t. One is Federal, the other is State or Local. Both, have the same strange rule which seemingly breaks the 14th amendment guarantee of equal protection, in that these rules are made for lawyers- not the citizens who may want to be the seekers of truth. Lawyers can get paid for their time in filing and requesting documents- citizens, not only would have to pay a lawyer to be re-compensated for their action, but- also have to pay the governments defense bill via taxes.
For some strange reason, we haven’t figured out that we need a “chief ethics officer/ombudsman/office of governmental accountability” to take our side in the fight for open, honest government.
The folks who’ve traditionally invested money in paying lawyers to uncover corruption- has been the so called “Fourth Estate”- journalists. News organizations would dig, like the NY Times has, to uncover the dirty little secrets that our government, with the best politicians money can buy, try to keep hidden.
In case you haven’t noticed, the news industry has taken a beating – thanks to the internet, where all information wants to be free, and power has been allowed to accumulate in the hands of a few- Google, Facebook, Amazon, Microsoft, Apple etc- where they discretely filter and target messages to keep you engaged and sometimes enraged. Newspapers have closed, newsrooms have shrunk, advertising has moved from print to digital and the ownership has consolidated. If the power five of online conversation was smart, they’d dedicate a portion of their profits to funding a non-profit office of governmental accountability.
The barriers to gaining access to public records have increased. The cost/benefit equation for news organizations has decreased, with lower ad revenue and smaller audiences. In Ohio- you can add in horribly written laws with vague definitions as to fines or punishments and caps on fines- and you have an impotent set of rules- enforced by elected officials who are more likely to side with elected officials.
The State of Ohio publishes a “Yellow Book” – 250 pages of fiction that encourage the public to enforce both open meetings laws  and how to do public records requests. It puts all the work on the public- with no help from anyone in government. Our tax dollars pay to defend these cases against us. And, although the book says to “always err to open” that book has no teeth and it gives you no weapons to use against the government.
And let’s be clear, the records belong to the public. They are paid for by the public, they are collected by public employees, and they are there to give the public confidence that those in power aren’t abusing their power.
Need a good example of a PRR that took too long, covered up too much, and changed the course of who was in power?
Laquan McDonald  was a Black youth shot and killed in Chicago by a police officer on Oct 20, 2014.The cops covered up the evidence, allowing their officer, Jason Van Dyke to being justified in shooting McDonald 16 times. Finally, a court ordered the police to release a dash cam video, 13 months later on Nov 24, 2015- and instantly, Van Dyke was charged with first degree murder. Had the tape been released before the re-election of Rahm Emanuel in 2015- the outcome may have been much different.
Bodycam video is one of the newest public records types and is still controversial. But other types of records have more established policies- like emails, interoffice communications and even text messages. It was an investigation of text messages between members of the Cincinnati City Council  (the “Gang of five) that revealed that members of council were having de facto secret meetings by texting each other about city business- which got them caught. A lawyer collected over $90K in fees – the plaintiff- was paid $500, and despite Ohio’s law that claims violations of the Public Meetings Act can end in removal from office (it never happens) most got off with a slap on the wrist.
Then there is the question of the public records of public officials who are recorded by confidential informants. Nan Whaley was recorded by Federal agents involved in a pay to play investigation. We know these tapes exist because Dayton is a small town, and I am connected to someone on the grand jury that prosecuted Joey Williams, Roshawn Winburn and Clayton Luckie. After I filed the FOIA request for those tapes – a federal judge unsealed one of the warrants . Since August 10, 2021, the feds have been fighting a rear guard action to delay the court hearing- and to provide the tapes in question. Whaley, in the meantime- is running for Governor of Ohio, while possibly doing the exact same thing Joey Williams did- running for office after already entering a plea deal.
If you’ve been following my case of requesting video from the multi-million dollar video system that the Dayton Metro Library has installed downtown, you’ll know that Judge Gerald Parker kept giving the library numerous delays and extensions in delivery of the video. Their cost- $100 a day for each day of delays- but, capped at 10. So, instead of facing me in Federal Court with the same evidence they had and held, I had to file in Federal court without ever having seen the video I’d requested. This was a ploy by Parker, the Prosecutor and the Government to minimize my chance to sue- and gain a legal advantage. Despite having plenty of evidence that the prosecutor lied in court, that the library was intentional in withholding the video to give them an edge, and never supplying it in the same format they do to every other requestor (mostly police departments)- I couldn’t get into court to try them for obstruction of justice- and perjury. Now, my case is at the Supreme Court,  and the prosecutor has responded suggesting I’m some sort of loon- for suggesting that they are a corrupt organization hell bent on making sure to ostracize me, while covering up their illegal behavior in multiple instances.County’s response to Esrati’s supreme court filing
They suggest my filing was “sixteen (16) pages of oddball accusations and general complaining” and “Appellant once again makes general and vague statements about the political climate of Montgomery County and Dayton, Ohio, and the “retribution” Appellant has experienced as a result of his blog, Esrati.com. Appellant certainly has many axes to grind and personal grievances to air, but this Court is not the appropriate venue in which to air them.”
Apparently, requesting and receiving a timely public records isn’t a part of the case- and the only formats that have to be followed is the court mandated ones. When I filed a transcript of the one hearing- it wasn’t ok- just as I claim their supplied video didn’t follow any standard format for security video. Lying in court is fine if you are the prosecutor- and not awarding legal fees to the “winning plaintiff” is up to a judge who owes his career to sucking up to a prosecutor, who runs the county like a mobster.
And this is why, public records law as they stand, are an insult to the public.