When Gov. Tim Walz was announced as Kamala Harris’ running mate, Ben Jealous, the Sierra Club’s executive director, released a statement hailing him as someone who “has worked to protect clean air and water, grow our clean energy economy, and see to it that we do all we can to avoid the very worst of the climate crisis.” 

But to a group of Indigenous environmental activists familiar with Walz’s record in Minnesota—particularly their view he broke a promise to block the construction of Line 3, a cross-state oil pipeline—such a ringing endorsement of his green credentials rings hollow. 

A few days after her home state’s governor joined the ticket, Tara Houska, an attorney and Indigenous rights activist, expressed that point of view in an Instagram video post where she said he had led “a brutal, multi-year campaign to suppress Indigenous people and allies trying to stop Line 3 tar sands.” It showed a clash between protesters and police at a Line 3 pipeline construction site over a soundtrack of rising drums. In the final scene, Houska is being escorted away by police while in restraints. 

Houska first became involved in protesting pipelines in 2016 when, after working as a Native policy advisor for Bernie Sanders’ 2016 presidential campaign, news about the Dakota Access Pipeline drew her back to the Midwest. After six months demonstrating against that pipeline at the Standing Rock reservation, Houska returned to the East Coast. She soon saw news coming out of the Midwest about a different pipeline: “I was like, ‘Oh, I need to go home.’”

The debate in Minnesota, which would lead to hundreds of demonstrators being arrested, came in the wake of major protests against the Dakota Access and Keystone XL pipelines. The projects were opposed by environmental activists upset they would speed fossil fuel extraction and consumption, and by Indigenous communities concerned about the impact on their historic lands and waters.

The controversy dates back to April 2015, when Enbridge, a Canadian energy company, proposed to then-Gov. Mark Dayton’s administration a plan to replace an aging pipeline originally completed in 1968. The project, Enbridge argued, would address “integrity and safety concerns” and allow the company to transmit 760,000 barrels of oil per day. The proposed new route traveled from Canada to Minnesota’s border with Wisconsin, passing through state forests and the Fond du Lac Reservation, home to over four thousand members of the Lake Superior Chippewa.

Beyond climate-related concerns, opponents feared the pipeline would threaten water systems, especially wild rice beds, that Indigenous communities rely on. Enbridge’s track record includes two of the largest inland oil spills in national history. In 1991, Line 3 released 1.7 million gallons of crude oil in Northern Minnesota, and in 2010, another Enbridge pipe spilled over 1 million gallons in Kalamazoo, Michigan.

“We were sold one thing to vote for them…When we did vote, we were totally betrayed.” 

Walz’s first public comments on the pipeline came in 2017, after Dayton announced he would not seek another term, and Walz, who had represented a southern Minnesota congressional district for 10 years, rolled out a campaign to succeed him. During a contested Democratic primary, Walz advocated against Line 3 by criticizing its harm to Native communities and lands. 

“Any line that goes through treaty lands is a nonstarter for me,” he wrote on Twitter, adding that “every route would disproportionately and adversely affect Native people. Unacceptable.” His stand drew in support from the Indigenous community and environmentalists, reassuring voters who may have been troubled by his record in Congress, where he was just one of thirty Democratic members to vote in favor of the Keystone XL Pipeline. 

“They got that extra push from climate folks and from tribal folks,” Houska recalled, explaining that Walz and his running mate, Peggy Flanagan, a member of the White Earth Nation, earned her vote in 2018. 

Enbridge’s proposal, after years of reviews, appeals, and public forums, finally garnered the approval of Minnesota’s Public Utilities Commission in June of 2018. But in the final weeks of Dayton’s term, his administration sued to overturn the decision, with the outgoing governor writing that he hoped to “ensure that a project with this magnitude of environmental impact upon our state serves the needs of our citizens.” 

After Walz took office in early 2019, he said he would continue Dayton’s lawsuit, but in public remarks seemed to lay the groundwork to wash his hands of the issue, suggesting the project’s fate laid with an appeals court’s review of the commission’s decision. He explained he would not use executive powers to stop the pipeline “as a protection against the checks and balances being weakened.”

While Walz’s administration would continue to refile and support the suit Dayton launched, after a new environmental review, Enbridge was nonetheless able to obtain final permits and begin construction in December 2020. By early 2021, protests began to ramp up near Line 3 construction sites that would continue through the summer. In February, a group of tribal leaders asked Walz to enact an executive order to stop construction while litigation continued. At that point, a spokesperson for Walz said he did “not believe it is within his role to stay project permits that have been issued by state agencies after a thorough environmental review and permitting process.” 

Houska says Walz passed the buck. “The reality is his administration could’ve stopped Line 3,” she argues, by upholding treaty obligations—specifically the Ojibwe nation’s unique right to harvest wild rice, which activists warned was threatened by the pipeline. 

As opposition to the pipeline entered a new confrontational phase, demonstrators were met by a unique police force: the Northern Lights Task Force, which was made up of county law-enforcement agents whose time, training, and equipment were supported by a state account funded with $8 million from Enbridge. (Public records obtained by the Intercept show Walz hosted a conference call with senior task force members, and discussed its use of tear gas.) In addition to tear gas, rubber bullets, and other non-lethal weapons, police deployed “pain compliance” tactics that left multiple protestors partially paralyzed. 

Walz’s choice of Flanagan, who had supported the Standing Rock pipeline protesters, as a running mate had been seen as a signal within Native communities that he would stand fast against the pipeline. “When it came through that he wasn’t doing anything, Peggy was very silent on the matter. She never showed up to rallies. Didn’t show up to the treaty camps,” says Dannah Thompson, an Anishinaabe anti-pipeline activist from Roseville, Minnesota.

As protest activity swirled, the lieutenant governor faced pressure to step in. Flanagan released a statement in July 2021 on Facebook: “While I cannot stop Line 3, I will continue to do what is within my power to make sure our people are seen, heard, valued and protected. Using my voice is an important part of that work.”

Walz’s administration did not respond to a request for comment. But in August 2021, just after a thousand Line 3 protestors picketed at the state capitol, Walz defended the project, by saying that while “we need to move away from fossil fuels… in the meantime if we’re gonna transport oil, we need to do it as safely as we possibly can with the most modern equipment.”

Construction only took about 10 months. (Minnesota’s Department of Natural Resources has since documented multiple aquifer breaches that took place during building.) When tar sands began being pumped through the pipeline in the fall of 2021, MN350, a state climate justice non-profit, issued a blistering statement: “Shame on Governor Walz, who broke his campaign promise.” 

“[We] fought as hard as we possibly could on every front: the ground fight, the regulatory fight, the political pressure, everything and anything to try to protect our wild rice and our waterways,” Houska said.

“Line 3 was an opportunity to prove that they wanted to take these bigger actions and stand up to financial powers and corporate powers,” says Thompson. “We were blindsided, and we were sold one thing to vote for them…When we did vote, we were totally betrayed.” 

“There is a small faction of us that I know who aren’t able to move past this,” Thompson adds. Citing “the violence that was pushed towards Native people” by police, she says sorting through Walz’s record on the pipeline is a pre-election “conversation that is going to be had in the months coming up in the Native community.” 

Ilhan Omar won renomination to Congress on Tuesday night, beating back a repeat challenger.

Leading up to the primary, it seemed Rep. Omar, after an aggressive campaign backed by a major financial advantage, would cruise to an easy win against her familiar opponent, Don Samuels, who lost the 2022 primary by a little over 2,000 votes. And that’s more or less how it turned out: Within two hours of the close of voting, Omar was declared the winner with a victory margin of around 16,00o votes, or 14 percent.

In the race’s final days, conservatives looking to oust Omar mounted a late effort to take advantage of Minnesota’s open primary format and convince Republicans to skip their party’s primary and instead vote for Samuels, a former member of the Minneapolis city council.

Royce White, the state GOP-endorsed Senate candidate, posted to X that he would gladly give up 5,000 votes in the fifth congressional district to help unseat Omar. Far-right influencer Laura Loomer tweeted that “Republicans, Independents and Democrats have a once in a lifetime opportunity to remove a HAMAS supporter from Congress. Everyone can vote in the open primary.” 

A recent investigation by The Intercept revealed a WhatsApp group named “Zionists for Don Samuels,” that played host to pro-Israel activists and a campaign consultant for Don Samuels; the group chat had also explored corralling Republican voters against Omar in the primary.

Omar won her primary by 14 percent.

Samuels campaign stated they had no part in the plan. On Twitter, Omar wrote that it “is shameful that my opponent is actively courting Republican votes.” 

One participant in “Zionists for Don Samuels” boasted he had raised more than $120,000 for a pro-Samuels super-PAC in the last two weeks, part of a fundraising effort discussed in the channel that arose in response to a lack of support for Samuels from the American Israel Public Affairs Committee. That lobbying group and its spending vehicle, the United Democracy Project have put over $25 million this primary season to supporting challengers that rose up to take on “squad” members who have been critical of Israel’s assault on Gaza.

While AIPAC reportedly planned to spend $100 million to elect more pro-Israel members of Congress in 2024, they seem to have sidestepped Samuels. Before he announced his repeat campaign, AIPAC sought to recruit sitting city councilmember LaTrisha Vetaw, as they reportedly believed Samuels had “reached his capacity” in 2022. But Vetaw’s campaign did not take shape, and Samuels again became Omar’s challenger.

In the 2022 primary, the Samuels-backing super-PAC Make a Difference MN 05 received $350,000 from UDP—a late donation that went unreported before the polls closed. This year, if late AIPAC support for Samuels exists, it has yet to be seen. But an almost identically named super-PAC sprung up in late July to amass over $100,000. Whatever its final receipts, this late funding was not enough to overcome Omar’s nearly $5 million lead.

Omar will now face Dalia Al-Aqidi, an Iraqi-immigrant who has the GOP endorsement, in the general election. The district has not sent a Republican to Congress since 1963. Omar won the 2022 general election with roughly 75 percent of the vote.

Next week, Rep. Ilhan Omar will take on a familiar opponent. On Tuesday, August 13, the progressive stalwart will face a second-consecutive primary challenge from Don Samuels, a former Minneapolis City Council member who came within 2 percent of beating her in 2022.  

For Samuels, that narrow margin was enough evidence to try again. But he didn’t announce his plans for a rematch against the congresswoman until about a month after Hamas’ October 7 attack, as a wave of contenders emerged to take on left-leaning lawmakers who spoke critically of Israel’s retaliatory assault on Gaza. Soon after getting in the race, Samuels staked his turf by going on TV to claim Omar had voiced opinions that were “the last straw in a long series of insensitive statements about Israel and Jewish people.” 

Omar has “been raising money on the idea that AIPAC would attack her. That has not happened.”

Samuels and these other challengers stepped up as the American Israel Public Affairs Committee, the long standing lobbying group, announced plans to spend $100 million in 2024 to contest candidates that they’ve determined are not pro-Israel enough, many of whom, like Omar, count themselves among the group of incumbent progressive representatives known as the “squad.” The strategy paid off when Rep. Jamaal Bowman lost to George Latimer in a June race where 61 percent of the money spent was from the United Democracy Project, an AIPAC-affiliated vehicle. It did so again on Tuesday night in St. Louis, as Rep. Cori Bush lost her primary to prosecutor Wesley Bell—whose campaign has been supported by $9 million from United Democracy Project.

While Samuels has made Omar’s positions on Israel and Gaza a key talking point—even calling her a “pawn for Hamas”—unlike Latimer and Bell, he has failed to garner substantial pro-Israel PAC funding. Samuels didn’t have the same issue in 2022, when United Democracy Project contributed $350,000 to his efforts just days before voting. The donation was only disclosed a month after the 2022 primary; Samuels later complained that he did not receive as much support from pro-Israel funders as the failed challenger who took on Omar in 2020. 

While a similar late infusion of money, potentially spurred on by Bell’s fresh win, remains a possibility, so far FEC filings show just one minor contribution backing Samuels from a pro-Israel PAC—$5,000 from an entity called To Protect Our Heritage. 

Given Samuels’ strong showing two years ago, it’s not exactly clear why he’s failed to garner such support. In August, Jewish Insider reported that while Samuels was already considering a rematch, AIPAC was instead seeking to recruit LaTrisha Vetaw, a sitting Minneapolis council member, to run against Omar. An operative involved in the discussions told the outlet that AIPAC had judged Samuels to have already “reached his capacity.” (AIPAC and UDP declined to comment on why they have not backed Samuels, or if they might still do so.)

While an AIPAC-supported Vetaw candidacy never materialized, Joelle Stangler, a Minneapolis teacher who is managing Omar’s primary campaign, says the hundreds of thousands of dollars AIPAC spent against the congresswoman in 2022 “could be seen as a bellwether” of the money spent this year taking down incumbents like Bowman and Bush. “We were a test case.” 

Given Omar’s narrow victory over Samuels in 2022, Stangler admits the campaign “took our foot off the gas” in that election. This year Omar, who is one of a handful of Muslim members of Congress, has been aggressively campaigning. Another change: their 2022 primary took place about a year after George Floyd was murdered by Minneapolis cops, kicking off widespread and sometimes destructive protests against police violence. By suing to force the city to hire more cops at the same time Omar and energized activists were calling for the dismantling of the city’s police department, Samuels emerged, as the Star Tribune put it, as “the face of the backlash against calls to reduce the police force.” That pro-police image boosted him among moderate Democrats and was a cornerstone of his 2022 challenge to Omar—but it’s a less salient issue in 2024. 

There’s no indication Samuels has the traction he did two years ago.

Omar has also already doubled the amount she fundraised in all of 2022; her nearly $7 million as of July 24 almost quintuples Samuels’ haul. Samuels has attempted to make an issue of the fact that a majority of Omar’s funding comes from out of state. “Representative Omar, with a large national fundraising base, has since November, been raising money on the idea that AIPAC would attack her. That has not happened,” says Joe Radinovich, Samuels’ campaign manager. 

In June, Omar’s campaign put AIPAC aside when it released research identifying roughly  $50,000 in 2024 contributions to Samuels that came from right-wing or Republican-backing donors, while noting his 2022 backers included Clarence Thomas-patron Harlan Crow and Republican-supporting super PACs. 

Radinovich defends the donations, arguing “that there are a number of people out there, of all political stripes…willing to give their resources to Don Samuels, who supports universal health care, bold climate policy, a woman’s right to choose—then you know we’re going to use the money to get that message out.”

Molly Priesmeyer, a South Minneapolis resident and an Omar supporter, says Samuels’ conservative funders have become a voting issue. After people learn about “that kind of influence,” she says, “regardless of their feelings about Omar, they’re reluctant to go with Don Samuels.” 

Samuels’ attacks have centered on Omar’s high number of missed votes, her foreign policy, a World Cup trip funded by the Qatari government, and an ongoing fraud case involving her husband. In spots that ran on local television during the Republican National Convention, Samuels’ debut ad slammed Omar for being “missing on the issues that matter most,” and assailed her position on police reform and her vote against Biden’s infrastructure bill.

But the ad also depicted her face on a missing persons poster—an image that immediately drew blowback from advocates from organizations focused on the disproportionate number of women of color who go missing or are murdered; one of them called it “​​insensitive, racist, [and] anti-women.” It wasn’t the first time Samuels was criticized for sexism. In November, Samuels spoke about Omar on a podcast, saying “You’re not cute enough, you don’t dress well enough, nothing about you is attractive enough to overcome that deficit.” Omar tweeted that the remarks were misogynist.

In the 2020 general election, Omar got about 73,000 fewer votes in her district than Joe Biden. “There is no Democratic congressional candidate in the country who trailed Joe Biden by more than Ilhan Omar in 2020,” Radinovich says, arguing that pool of Biden voters could be receptive to Samuels, who only lost by 2,500 votes last time.

But so far, there’s little indication Samuels is making new inroads, or has anything approaching the traction he did two years ago. While most polling data in the race has been released by Omar’s campaign, those figures have consistently shown her with a massive lead—numbers she released in late July put it at 27 points.

Correction, August 7: This story has been updated to reflect the number of Muslim women in Congress.

It took seven long years to pry one staggering number from the hands of the federal government: that 52,529 weapons once owned by police were recovered at crime scenes across the country from 2006 to 2021. In that period, an average of nine cop guns were recovered each day. The public didn’t know it.

This statistic was the missing piece in a yearslong reporting effort by Reveal, the Trace, and CBS News into how weapons sold by police departments were getting into the hands of criminals. Reveal first sought this information through the Freedom of Information Act (FOIA)—the keystone law centered on government transparency. But it wouldn’t be that easy. As Reveal’s court battles demonstrate, there is resistance to such transparency. 

These types of legal battles over FOIA requests are becoming more commonplace. According to a 2020 study by the FOIA Project, a Syracuse University-based research effort, media outlets filed more FOIA lawsuits to disclose government records during Donald Trump’s four-year presidential term than in the 16 years spanning Barack Obama and George W. Bush’s administrations. 

The origins of the police weapons FOIA case date back to 2008, when Alain Stephens, then a police recruit, purchased a Glock handgun in a Texas parking lot that turned out to have come from a New Jersey police department. It got him thinking: How often do police guns end up in the hands of criminals? This question grew into a larger project once Stephens became a reporter and started the fight for this number as a fellow at Reveal. After his FOIA request was denied based on an argument that firearms trace data is confidential, the Reveal legal team sued—but it took seven years to claim victory. 

Five of those years were court battles that rose all the way to the 9th US Circuit Court of Appeals. The case stalled further after another federal court interpreted the exemption differently and generated an opposing precedent, creating uncertainty.

The last two years were spent waiting for the Bureau of Alcohol, Tobacco, Firearms, and Explosives to cough up that one statistic. Armed with that number—52,529 former law enforcement weapons recovered at crime scenes—teams at the Trace, CBS News, and Reveal found that many of these guns had been traded in or sold back to gun manufacturers, a cost-saving measure that has sent thousands of guns back onto the streets to be used in violent crimes.

I spoke with D. Victoria Baranetsky—general counsel for the Center for Investigative Reporting (CIR), which houses Mother Jones and Reveal—about the battle over transparency on cop guns and the state of FOIA today. She’s led several other FOIA lawsuits for Reveal that have forced more transparency from the federal government: The rate of worker injuries at Amazon warehouses and most other American employers is no longer confidential, and the government now has to disclose the diversity of contractors it hires. She recently filed a case against OpenAI and Microsoft for using CIR’s content without permission or compensation. 

This interview has been edited for clarity and condensed.

How did this case with the ATF start?

It started with Alain [Stephens] calling me up and being like, “Does this law say what I think it says?” 

Alain was explaining to me that he was trying to get data from the ATF, but he was denied. There was this statute called the Tiahrt Amendment that did not allow for gun data to be disclosed. But there were exceptions—and the third exception under the law was for statistical aggregate data. 

And he said, “I’m asking for just the number of guns that law enforcement have given back and put back into the marketplace.” And I said, “Yeah, I think that’s statistical aggregate data.” 

So we sued.

What arguments did the ATF give for withholding data about police guns used in crimes?

They were saying that that exception was not meant for reporters. It was meant for only law enforcement and other folks that were supposed to be getting access to this data, not the general public. 

And then there was a whole new issue entirely. They said that making them search for this number through their database would be the creation of a new record, and agencies are not required to create new records. They’re only required to produce what they have. And so they said, “Listen, you make us plug in this analysis and spew out a number for you, that’s going to be a new record that wouldn’t have existed prior, and so we’re not obligated to disclose this.” 

The court shut that down immediately.

That kind of analysis would essentially destroy all kinds of data searches that governments have in their capacity today, because we’re living in the modern world and databases are the way that information is held. So if you limited searching a database as the creation of a new record, you’d essentially cut off access to tons of information that the public should have the right to know. 

Unfortunately, this is not the only case where we have come across that argument. 

So has that become a new tactic of how the government tries to restrict access to data?

Yes, it has worked in some locations. There’s a smattering of cases across the country leaning in either direction, but there’s no prevailing outcome yet as this is still being deliberated on across the country. 

I think there’s also an even more disturbing reason for transparency today, which is more and more information is being created than ever before—and more is being collected than ever before by large corporate and government powers. There’s a massive imbalance as to who has access to that data; it’s all corporations and governments.

That is one of the reasons why this case was actually a huge win completely outside the realm of the ATF…this was something that would apply to all cases involving databases.

What does a seven-year FOIA legal battle look like? 

A lot of emails. 

This was actually the longest case I dealt with while I’ve been at this job. It’s just stages of a lot of intense work and then waiting. So writing the brief, which takes, like, three months, and you’re kind of in this tunnel vision of how to perfectly describe this argument to the court, and you submit it, you file it at midnight, and then you wait. You just wait for months and months and then get an argument date, and you prep for that for months and months. And then you wait. 

Why is data transparency important for democracy?

In the United States, FOIA is actually one of the very few laws committed to transparency. And constitutionally, there are actually fewer and fewer protections for transparency.

There has been a sharp rise in the number of Exemption 3 statutes. Those are the statutes that Congress has been lobbied to pass to stop information from being disclosed under FOIA.

In fact, the Tiahrt Amendment, and the center of this case with Alain, was one of those statutes. The NRA [National Rifle Association] lobbied for that law to be passed, and I think they very intelligently did so, because I think its impact was actually huge. When you don’t have access to information, the public doesn’t really know what it thinks about an issue, because it can’t really get to the facts of the matter. So, I think, in general, facts help people make choices that can help them then make choices about who they elect into power. 

But I think there’s also an even more disturbing reason for transparency today, which is more and more information is being created than ever before—and more is being collected than ever before by large corporate and government powers. There’s a massive imbalance as to who has access to that data; it’s all corporations and governments. For the public to not have a countervailing pressure or countervailing force to have access to that is deeply problematic. More and more decisions are having an impact in our life that corporations and governments are involved in, and they’re making those decisions based on data that we have no access to. If you have no access to that, there’s no accountability as to how those decisions are being made.

Reveal faced a SLAPP lawsuit in 2016 from Planet Aid that was eventually thrown out by a federal court in 2021. What does the legal battle with Planet Aid have in common with the lawsuit for gun trace data? 

A SLAPP is a strategic lawsuit against public participation, something that’s supposed to quash First Amendment free speech activity. And anti-SLAPP statutes were created to quickly go into court. It’s not, theoretically, supposed to take more than a year or so at most. That [SLAPP] case went on for years—this incredible process of delay, delay, delay, eat up your resources, eat up your resources, eat up your resources, for something that was especially made to be answered quickly and efficiently. It dragged out for so long that it almost bankrupted our organization. You see tactics of this being used all over our system. 

I think that’s the greatest parallel to this case with Alain. There’s no end in sight, right? Like, you filed a lawsuit. You go through seven years. You win. And then you still have to file another lawsuit to actually enforce it. To get to finality, it just takes too long now, much longer than it ever should have taken. 

And there’s an added problem with FOIA where at some point, that information is stale. It doesn’t matter in the same way it would have mattered if it had been disclosed years prior. 

Most smaller newsrooms and freelance journalists don’t have the luxury of legal support on staff like Mother Jones and Reveal do. Knowing that, what does this mean for journalism? 

Most newsrooms, most journalists, most academics, protesters, citizens just don’t have the legal support to execute this. And that is really unfortunate and depressing. There was a paper written more than five years ago about how corporations are actually the ones that use FOIA the most to find out information about their competitors. So FOIA, drafted for the public and reporters, is not really being used by that sect of people. It’s being used often by corporate stakeholders who want to find information and that’ll give them a competitive advantage.

I still think [FOIA] does a lot, but I think the problem is how agencies choose to comply. The pressure put on them to comply is very minimal, and I think that greatly impacts journalism, because you know that if you actually did have access to this information, it would be helpful. 

In looking at FOIAs, does the presidential administration make a difference in how they’re treated? Did you see differences between our fights under Trump and Biden’s administrations? 

Honestly, I don’t think any administration is ever forthright in giving information. I think if you ask most people who live in the land of FOIA lawsuits, they’ll tell you that every administration kind of acts with a similarly hostile manner. The truth is power wants to hide problems. Power chooses to evade accountability, and that’s the whole point of FOIA. I think anyone who’s really in that position doesn’t necessarily want to share information. And our government, especially since 9/11, has just become a secrecy-obsessed state.

Thinking forward, what do you think the future holds for FOIA requests? 

There are all these specific areas that are going under a lot of different splits or interpretations. One of them is about whether data searching a database is the production of a new record. That’s like one little spot. I think that there are a few other hot-button areas. One is like the exemption “Glomar,” where an agency gives the response, “Can’t confirm or deny that the records even exist.” Now we’re seeing that Glomar is applied even in cases where Glomar can’t be applied, or just the expansion of Glomar. 

There was a decision that came out in 2019 that changed the test for what was confidential business information, which is exempt. And the Supreme Court changed it to be more friendly toward corporations. Previously, confidential business information was things that only would substantially hurt a corporation if disclosed—like you have an ingredient list for Coca-Cola. But the court changed it to whatever a company says is customarily or actually secret. As long as they give it a rubber stamp and say it’s so, it is so. I think that area of law already has had a lot of litigation, but that’ll be really interesting. 

Transparency has actually always been a bipartisan issue. In some ways, all administrations hate it and all administrations love it because it equally hurts both sides or helps both sides. So that’s why legislation on FOIA has been able to pass over the past decade. That being said, the courts have been much more pro-corporate and pro-law enforcement in a way that I do worry will further stifle the charge of FOIA.

It took seven long years to pry one staggering number from the hands of the federal government: that 52,529 weapons once owned by police were recovered at crime scenes across the country from 2006 to 2021. In that period, an average of nine cop guns were recovered each day. The public didn’t know it.

This statistic was the missing piece in a yearslong reporting effort by Reveal, the Trace, and CBS News into how weapons sold by police departments were getting into the hands of criminals. Reveal first sought this information through the Freedom of Information Act (FOIA)—the keystone law centered on government transparency. But it wouldn’t be that easy. As Reveal’s court battles demonstrate, there is resistance to such transparency. 

These types of legal battles over FOIA requests are becoming more commonplace. According to a 2020 study by the FOIA Project, a Syracuse University-based research effort, media outlets filed more FOIA lawsuits to disclose government records during Donald Trump’s four-year presidential term than in the 16 years spanning Barack Obama and George W. Bush’s administrations. 

The origins of the police weapons FOIA case date back to 2008, when Alain Stephens, then a police recruit, purchased a Glock handgun in a Texas parking lot that turned out to have come from a New Jersey police department. It got him thinking: How often do police guns end up in the hands of criminals? This question grew into a larger project once Stephens became a reporter and started the fight for this number as a fellow at Reveal. After his FOIA request was denied based on an argument that firearms trace data is confidential, the Reveal legal team sued—but it took seven years to claim victory. 

Five of those years were court battles that rose all the way to the 9th US Circuit Court of Appeals. The case stalled further after another federal court interpreted the exemption differently and generated an opposing precedent, creating uncertainty.

The last two years were spent waiting for the Bureau of Alcohol, Tobacco, Firearms, and Explosives to cough up that one statistic. Armed with that number—52,529 former law enforcement weapons recovered at crime scenes—teams at the Trace, CBS News, and Reveal found that many of these guns had been traded in or sold back to gun manufacturers, a cost-saving measure that has sent thousands of guns back onto the streets to be used in violent crimes.

I spoke with D. Victoria Baranetsky—general counsel for the Center for Investigative Reporting (CIR), which houses Mother Jones and Reveal—about the battle over transparency on cop guns and the state of FOIA today. She’s led several other FOIA lawsuits for Reveal that have forced more transparency from the federal government: The rate of worker injuries at Amazon warehouses and most other American employers is no longer confidential, and the government now has to disclose the diversity of contractors it hires. She recently filed a case against OpenAI and Microsoft for using CIR’s content without permission or compensation. 

This interview has been edited for clarity and condensed.

How did this case with the ATF start?

It started with Alain [Stephens] calling me up and being like, “Does this law say what I think it says?” 

Alain was explaining to me that he was trying to get data from the ATF, but he was denied. There was this statute called the Tiahrt Amendment that did not allow for gun data to be disclosed. But there were exceptions—and the third exception under the law was for statistical aggregate data. 

And he said, “I’m asking for just the number of guns that law enforcement have given back and put back into the marketplace.” And I said, “Yeah, I think that’s statistical aggregate data.” 

So we sued.

What arguments did the ATF give for withholding data about police guns used in crimes?

They were saying that that exception was not meant for reporters. It was meant for only law enforcement and other folks that were supposed to be getting access to this data, not the general public. 

And then there was a whole new issue entirely. They said that making them search for this number through their database would be the creation of a new record, and agencies are not required to create new records. They’re only required to produce what they have. And so they said, “Listen, you make us plug in this analysis and spew out a number for you, that’s going to be a new record that wouldn’t have existed prior, and so we’re not obligated to disclose this.” 

The court shut that down immediately.

That kind of analysis would essentially destroy all kinds of data searches that governments have in their capacity today, because we’re living in the modern world and databases are the way that information is held. So if you limited searching a database as the creation of a new record, you’d essentially cut off access to tons of information that the public should have the right to know. 

Unfortunately, this is not the only case where we have come across that argument. 

So has that become a new tactic of how the government tries to restrict access to data?

Yes, it has worked in some locations. There’s a smattering of cases across the country leaning in either direction, but there’s no prevailing outcome yet as this is still being deliberated on across the country. 

I think there’s also an even more disturbing reason for transparency today, which is more and more information is being created than ever before—and more is being collected than ever before by large corporate and government powers. There’s a massive imbalance as to who has access to that data; it’s all corporations and governments.

That is one of the reasons why this case was actually a huge win completely outside the realm of the ATF…this was something that would apply to all cases involving databases.

What does a seven-year FOIA legal battle look like? 

A lot of emails. 

This was actually the longest case I dealt with while I’ve been at this job. It’s just stages of a lot of intense work and then waiting. So writing the brief, which takes, like, three months, and you’re kind of in this tunnel vision of how to perfectly describe this argument to the court, and you submit it, you file it at midnight, and then you wait. You just wait for months and months and then get an argument date, and you prep for that for months and months. And then you wait. 

Why is data transparency important for democracy?

In the United States, FOIA is actually one of the very few laws committed to transparency. And constitutionally, there are actually fewer and fewer protections for transparency.

There has been a sharp rise in the number of Exemption 3 statutes. Those are the statutes that Congress has been lobbied to pass to stop information from being disclosed under FOIA.

In fact, the Tiahrt Amendment, and the center of this case with Alain, was one of those statutes. The NRA [National Rifle Association] lobbied for that law to be passed, and I think they very intelligently did so, because I think its impact was actually huge. When you don’t have access to information, the public doesn’t really know what it thinks about an issue, because it can’t really get to the facts of the matter. So, I think, in general, facts help people make choices that can help them then make choices about who they elect into power. 

But I think there’s also an even more disturbing reason for transparency today, which is more and more information is being created than ever before—and more is being collected than ever before by large corporate and government powers. There’s a massive imbalance as to who has access to that data; it’s all corporations and governments. For the public to not have a countervailing pressure or countervailing force to have access to that is deeply problematic. More and more decisions are having an impact in our life that corporations and governments are involved in, and they’re making those decisions based on data that we have no access to. If you have no access to that, there’s no accountability as to how those decisions are being made.

Reveal faced a SLAPP lawsuit in 2016 from Planet Aid that was eventually thrown out by a federal court in 2021. What does the legal battle with Planet Aid have in common with the lawsuit for gun trace data? 

A SLAPP is a strategic lawsuit against public participation, something that’s supposed to quash First Amendment free speech activity. And anti-SLAPP statutes were created to quickly go into court. It’s not, theoretically, supposed to take more than a year or so at most. That [SLAPP] case went on for years—this incredible process of delay, delay, delay, eat up your resources, eat up your resources, eat up your resources, for something that was especially made to be answered quickly and efficiently. It dragged out for so long that it almost bankrupted our organization. You see tactics of this being used all over our system. 

I think that’s the greatest parallel to this case with Alain. There’s no end in sight, right? Like, you filed a lawsuit. You go through seven years. You win. And then you still have to file another lawsuit to actually enforce it. To get to finality, it just takes too long now, much longer than it ever should have taken. 

And there’s an added problem with FOIA where at some point, that information is stale. It doesn’t matter in the same way it would have mattered if it had been disclosed years prior. 

Most smaller newsrooms and freelance journalists don’t have the luxury of legal support on staff like Mother Jones and Reveal do. Knowing that, what does this mean for journalism? 

Most newsrooms, most journalists, most academics, protesters, citizens just don’t have the legal support to execute this. And that is really unfortunate and depressing. There was a paper written more than five years ago about how corporations are actually the ones that use FOIA the most to find out information about their competitors. So FOIA, drafted for the public and reporters, is not really being used by that sect of people. It’s being used often by corporate stakeholders who want to find information and that’ll give them a competitive advantage.

I still think [FOIA] does a lot, but I think the problem is how agencies choose to comply. The pressure put on them to comply is very minimal, and I think that greatly impacts journalism, because you know that if you actually did have access to this information, it would be helpful. 

In looking at FOIAs, does the presidential administration make a difference in how they’re treated? Did you see differences between our fights under Trump and Biden’s administrations? 

Honestly, I don’t think any administration is ever forthright in giving information. I think if you ask most people who live in the land of FOIA lawsuits, they’ll tell you that every administration kind of acts with a similarly hostile manner. The truth is power wants to hide problems. Power chooses to evade accountability, and that’s the whole point of FOIA. I think anyone who’s really in that position doesn’t necessarily want to share information. And our government, especially since 9/11, has just become a secrecy-obsessed state.

Thinking forward, what do you think the future holds for FOIA requests? 

There are all these specific areas that are going under a lot of different splits or interpretations. One of them is about whether data searching a database is the production of a new record. That’s like one little spot. I think that there are a few other hot-button areas. One is like the exemption “Glomar,” where an agency gives the response, “Can’t confirm or deny that the records even exist.” Now we’re seeing that Glomar is applied even in cases where Glomar can’t be applied, or just the expansion of Glomar. 

There was a decision that came out in 2019 that changed the test for what was confidential business information, which is exempt. And the Supreme Court changed it to be more friendly toward corporations. Previously, confidential business information was things that only would substantially hurt a corporation if disclosed—like you have an ingredient list for Coca-Cola. But the court changed it to whatever a company says is customarily or actually secret. As long as they give it a rubber stamp and say it’s so, it is so. I think that area of law already has had a lot of litigation, but that’ll be really interesting. 

Transparency has actually always been a bipartisan issue. In some ways, all administrations hate it and all administrations love it because it equally hurts both sides or helps both sides. So that’s why legislation on FOIA has been able to pass over the past decade. That being said, the courts have been much more pro-corporate and pro-law enforcement in a way that I do worry will further stifle the charge of FOIA.