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Gina Haspel Torture Cable Newly Released in NSArchive FOIA Suit Shows Mistaken Belief Detainee Had Imminent Attack Information: FRINFORMSUM 10/18/2018

October 18, 2018

The CIA’s latest release (right side) shows the base officers were “guardedly optimistic that the aggressive procedures may already be having an impact on subject’s resistance posture.”

Gina Haspel CIA Torture Cables’ Dates and Times Declassified

The National Security Archive’s FOIA lawsuit for cables authored and authorized by CIA director Gina Haspel during her tenure as chief of base at a CIA black site prison in Thailand in 2002 has won additional information that provides a detailed chronology of the CIA torture, which began on “Day One” of the suspect’s (Abd al-Rahim al-Nashiri) confinement at the site, November 15, 2002. The torture included being slammed against walls, forced nudity, confinement in coffin-sized boxes, shackles and hoods such as seen in the infamous Abu Ghraib photographs, and waterboarding – which U.S. prosecutors established as a war crime in proceedings against Japanese soldiers after World War II.

Of special note, one of the newly released cable portions documents Haspel’s own intelligence failure in believing the al-Qaeda suspect had imminent attack information. Cable 11258 sent on November 16, 2002 admitted that the second torture session “produced little actionable threat information” but “left base officers guardedly optimistic that the aggressive procedures may already be having an impact on subject’s resistance posture.” Haspel wrote, “Although base has little doubt that subject is withholding actionable information, the shock of his first hours at [black site] appears to have focused him on our interests and on the severity of his predicament.” The Senate Intelligence Committee report declassified in 2014 documents that the suspect in fact did not have imminent threat information, and had already confessed any useful intelligence during his prior captivity in Dubai.

Fish and Wildlife Service Moves to Limit Information Released under FOIA

The Guardian’s Jimmy Tobias obtained a confidential internal email authored by the Fish and Wildlife Service’s Bridget Fahey urging employees at the agency (which administers the Endangered Species Act) to be less transparent when responding to FOIA requests. Our Nate Jones told the Guardian that the FWS guidance “is “the first time under the Trump administration that I have seen a paper trail from the government suggesting its employees release less under Foia.” Jones added the guidance was a disturbing “departure from the previous administration’s official stance that ‘when in doubt, release information.’”

Interior IG’s Replacement Comes as Surprise to Interior IG

Last week Housing and Urban Development Secretary Ben Carson informed staff that HUD’s Suzanne Israel Tufts would be moving to the Interior Department to serve as its acting inspector general. The announcement came as a surprise to Interior’s current deputy IG, Mary Kendall, who has overseen the agency’s IG for 10 years and whose office has yet to receive any official communication about the change. The replacement also comes as the Interior IG has two ongoing investigations into Interior Secretary Ryan Zinke, one concerning “a real estate arrangement in Zinke’s hometown of Whitefish, Montana, involving his wife, a charitable foundation he started and the executive chairman of Halliburton,” and the other regarding an decision to block a request from a Connecticut Native American Tribe to open a casino and claims that MGM successfully lobbied the Interior Dept. to block the casino’s approval. A FOIA request from American Oversight won Tufts’ resume, showing previous work experience “for the Trump campaign recruiting and training lawyers deployed by the Republican National Lawyers Association to watch the polls on Election Day 2016.”

DOE Belatedly Declassifies Decision Announcing Declassification

The Energy Department last year decided to “declassify the fact it intended to make 25 metric tons of Highly Enriched Uranium available from ‘the national security inventory’ for downblending into Low Enriched Uranium for use in the production of tritium.” Steve Aftergood notes, amazingly, that the declassification decision itself was initially classified as Secret. This year however, thanks to a FOIA request, the department has declassified the downblending decision. Aftergood points out, “There were 160 MT of US HEU downblended by the end of FY 2018, according to the FY 2019 DOE budget request (volume 1, at page 474), and a total of 162 MT was anticipated by the end of FY 2019, as noted recently by the International Panel on Fissile Materials.”

PCLOB Releases PPD-28 Surveillance Report in Response to FOIA Request

A FOIA request from New York Times’ reporter Charlie Savage has won the release of the Privacy and Civil Liberties Oversight Board’s Top Secret report on the implementation of President Obama’s presidential policy directive to “impose various surveillance reforms in response to the Snowden disclosures.” Savage notes that the partly redacted document confirms earlier assessments that “the NSA, FBI, and CIA were largely already doing what Obama instructed them to do in such respects. One exception is that the CIA apparently applied its limits (like a requirement to delete raw data after five years) to mixed-source collections — those that contained information gathered both through electronic surveillance and human-source intelligence — even though the directive on its face applied only to signals intelligence, not humint.”

FOIA Suit Challenges Definition of a ‘Record’

Cause of Action Institute has filed a FOIA lawsuit against the Justice Department “challenging the definition of a ‘record’ to prevent federal agencies from unnecessarily redacting public information.” The suit challenges the common practice, sanctioned by DOJ guidance, of agencies redacting information from a document as “nonresponsive,” making “nonresponsive” material the FOIA’s de facto tenth exemption. COA takes specific issue with DOJ guidance that allows agencies “to break a single record into multiple smaller records, redacting information that would otherwise be public and not meet allowable exemptions under the FOIA statute (e.g. releasing a single paragraph while redacting the rest of an email as a ‘nonresponsive record’).” The complaint can be read here.

US Marine Corps Air Station Futenma base in Ginowan, Okinawa prefecture. (AFP2018/Toshifumi Kitamura)

Okinawa: Perennial Flashpoint in the U.S.-Japan Alliance

Recent news reports out of Okinawa underscore the extent to which the long-standing U.S. military presence on the island is a perennial source of political friction that complicates the U.S.-Japanese military alliance. During the Cold War and after, domestic politics on the island has repeatedly focused on the desire of Okinawa’s residents to reduce or eliminate this U.S. military presence. This tension creates a political challenge for Japan, which needs to find a way to address these domestic pressures while supporting the military relationship with Washington.

This week the National Security Archive posted a selection of documents from its Digital National Security Archive collections highlighting the relevance of these materials – and recent history – to current policy and political issues. The Archive’s three document sets on U.S.-Japan relations contain 654 documents on the subject of Okinawa, providing extensive coverage of U.S. policies regarding its administration of the island in the 1960s, Okinawa’s reversion to Japan in 1972, and subsequent political and economic issues created by the U.S. military bases on the island.

#TBT Pick – U.S. Propaganda in the Middle East – The Early Cold War Version

This week’s #TBT pick is a 2002 posting from our Iraq Documentation Project director, Joyce Battle, which examines US propaganda campaigns in the Middle East during the Truman and Eisenhower administrations. Most of the nearly 150 documents analyzed by Battle come from the State Department and focus on Saudi Arabia, Iraq, and Iran. The overall objective of the propaganda campaign was to “expose the fallacies of communism” and to warn of its dangers, but the documents delve into a variety of issues, including but not limited to Palestine, the Kurds, anticolonialism, and atomic energy.

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FOIA’s Foreseeable Harm Standard Gets Some Teeth: FRINFORMSUM 10/4/2018

October 4, 2018

FOIA’s Foreseeable Harm Standard Gets Boost from The Court

A recent U.S. District Court for the DC Circuit ruling has given some teeth to the “foreseeable harm” standard codified by the FOIA Improvement Act of 2016. The court found in Carol Rosenberg, et al., v. U.S. Department of Defense, which seeks communications from then-Marine Corps General John Kelly concerning Joint Task Force Guantanamo, that “the government must do more than perfunctorily state that disclosure of all the withheld information—regardless of category or substance— ‘would jeopardize the free exchange of information between senior leaders within and outside of the [DOD]’”. This is an important boost solidifying that agencies can only withhold information under one of FOIA’s discretionary exemptions if the agency can identify a specific interest protected by one of FOIA’s statutory exemptions that would be harmed by the release, or if the disclosure is prohibited by law.

The FBI’S “Green Book”

The Black Vault’s Jon Greenewald has obtained a copy of the FBI’s internal FOIA processing manual, “The Green Book,” through the FOIA. The book is “a set of guidelines for agency officials in charge of responding to FOIA requests, specifically about the proper procedures for processing requests for FBI documents or documents from any other agency under the purview of Department of Justice. The Green Book also contains volumes of numbered memos from directors and other officials in the agency’s FOIA department, instructing FOIA officials on how to respond to requests regarding certain procedures the FBI conducts, organizations under surveillance by the agency, and other persons and events of interest.” The win is doubly significant because the bureau told The Public Record in 2015 that it couldn’t locate any responsive documents to a similar request for the manual. (“No Records” responses are a standard FBI tactic – more on the FBI’s intentionally flawed FOIA search procedures here.)

FOIA Sheds Light on Transportation Secretary Chao’s Daily Calendar – Including Surprising Amounts of Scheduled Private Time

FOIA-released records reviewed by POLITICO show that Transportation Secretary Elaine Chao’s daily calendars “clocked more than 290 hours of appointments labeled private — the equivalent of about seven weeks’ vacation — during her first 14 months in President Donald Trump’s Cabinet.” A former Transportation Department official suggested, after reviewing the records, that the large blocks of private time were more likely an effort to conceal specific activities, rather than reflective of actual private time taken by the secretary. Professor Kathleen Clark of Washington University in St. Louis notes, “You could have the concern about whether or not the public is getting a full day’s work out of Secretary Chao. The other concern is that the government could be using that term to obscure … to make the public records request useless, or not as useful as it might otherwise be.”

“Under FOIA, I request the Lost Ark of the Covenant.”

The Government’s Real-Life Indiana Jones Warehouse

Our FOIA director Nate Jones recently published a terrific primer on what FOIA requesters need to know about the Washington Records Center, a NARA-owned purgatory for other agencies’ “recent historical” records, and how to get agencies to search their holdings there in response to requests. Absent comprehensive solutions that would grant NARA the authority to release these kinds of records on their own, historians, researchers, and requesters hoping to access records from several decades ago will have put this line in all of their FOIAs, MDRs, and appeals: “As you know, your agency is required to search the records stored at NARA’s Washington Records Center in Suitland, MD, but still technically under your agency’s control.” Read the entire piece here.

Yeltsin Shelled Russian Parliament 25 Years Ago, U.S. Praised “Superb Handling”

Twenty-five years ago last night in Moscow, Russian President Boris Yeltsin ordered tanks and airborne troops to shell and storm the “White House,” the Russian Parliament (Supreme Soviet) building, to suppress the opposition trying to remove him.

Declassified documents published today by the National Security Archive and analyzed by Svetlana Savranskaya and Tom Blanton include the transcript of U.S. President Bill Clinton’s phone call to Yeltsin the next day to praise him, the memcon in which U.S. Secretary of State Warren Christopher subsequently told Yeltsin this was “superb handling,” and two State Department cables painting a more complex portrait of the causes of the events.

The posting also includes two oral history accounts, one from then-Russian Defense Minister General Pavel Grachev about his specific role, including his orders to fire the tank cannon that set off a “beautiful fire” in the White House, and the other from U.S. Ambassador Thomas Pickering who believed the U.S. had “no choice” but to support Yeltsin.

Fifty Years After Tlatelolco: Mexico’s “Dirty War” Files Withdrawn from Public Access

This week marks the fiftieth anniversary of the notorious Tlatelolco massacre, when the Mexican government killed dozens of students and bystanders protesting the authoritarian regime in a public plaza at Tlatelolco, Mexico City. Across the country, citizens are commemorating the event with marches and rallies, conferences, exhibitions, and performances. But even as Mexico acknowledges the legacy of the student movement of 1968 and grieves the long-ago slaughter of its young leaders, the Mexican government has quietly removed, censored, and reclassified thousands of previously accessible archives from that era.

Kate Doyle, senior analyst and the National Security Archive’s Mexico project director, has much more on the ongoing saga here.

Remembering Steve Garfinkel

The open government community recently learned that Steve Garfinkel, the long-serving director of the Information Security Oversight Office (ISOO), passed away late last month. In a lovely tribute to Garfinkel, Steve Aftergood notes, that “he played an influential role in the evolution of the national security classification system during its rapid expansion in the Reagan years and through the ambitious declassification initiatives of the Clinton era,” going on to say “Garfinkel made the whole system better than it was with the tools that he had available. He instituted training programs for classifiers, he restrained some of the excesses of agency officials, and he cultivated a rational approach to the diverse challenges that the late cold war classification system produced.” Garfinkel retired in 2002 and went on to teach high school in Maryland.

Cyber Brief: Maritime Cyber Security

In light of several cyber-attacks targeting major sea port operations, including ports in San Diego, Barcelona, and Long Beach, this week’s Cyber Brief highlights formative documents in critical infrastructure protection. These documents include Executive Order 13010, The Marsh Report, and PDD/NSC-63, which all help provide context for more recent documents specifically examining the cybersecurity of ports and maritime transport.

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The “Indiana Jones Warehouse:” How to use FOIA to get Documents from Purgatory

October 4, 2018

“Under FOIA, I request the Lost Ark of the Covenant.”

As documents age, the likelihood that they will be released to FOIA requesters should increase.  But because of a quirk of the US record keeping system, this is often not the case.  Usually, when someone requests a “historic document” (defined as older than 25 years) from an agency, the agency FOIA shop will state that it only deals with modern records, has found “no responsive records,” and is closing the FOIA request.  Sometimes the agency will include language kindly suggesting that you conduct your search at the US National Archives (NARA).

The Washington Records Center via Google Maps.

But often these records are not at NARA either.  NARA is up front in stating that only 2 to 5 percent of all federal records are deemed “permanently valuable historical records” and preserved for researchers at the Archives.  But what it is less clear about is that there is a decades-long lag time between when these permanent historic records move from agencies to NARA and that key historic documents can go to a “records purgatory” during these decades.   If requesters do not know about this purgatory the Washington Records Center– and the special steps needed to request records from it, they probably will be unsuccessful in many of their FOIA requests for records from the 1970s, 1980s, and 1990s.

In many respects, the Washington Records Center (WRC) is the real-life, US government equivalent to the warehouse where the Ark of the Covenant is stored, never to be found again, at the end of the Indiana Jones film, The Raiders of the Lost Ark.  The Washington Records Center is located in a heavily guarded federal office park in Suitland, Maryland, encompasses 789,000 feet, and has the capacity to hold over 3.9 million cubic feet of federal records. Key government documents are stored in the difficult-to-access location, and the public –including many FOIA experts– doesn’t even know it exists.

“Bother someone else for the old stuff.”

Take a look at two confusing and conflicting FOIA regulations about records which may be at the WRC.  The Department of State’s FOIA regulations state that “the Department ordinarily transfers records designated as historically significant to the National Archives when they are 25 years old.  Accordingly, requests for some Department records 25 years old or older should be submitted to the National Archives.”  There is no mention of the millions of State documents effectively hidden at the WRC.

“No records” for 22 percent of all FOIAs? Via DOJ OIP

To use a recent example, if a requester asked for documents from the State Department’s “country lot files” on Colombia during the early 1990s, State would respond with a “no records” response, and may tell you to go to look at NARA.  (Troublingly, “no records” denials rise each year, and official DOJ FOIA statistics misleadingly do not count them as FOIA denials.)

But if a researcher went to NARA 2 to look for these lot files, they would not find them there either.  Often, this is when researchers and FOIA requesters give up, thinking “perhaps these key documents I needed for my history really were destroyed.”  There is a chance, however, that the documents are in purgatory, at the Washington Records Center.  This is what the National Security Archive recently found, after successfully obtaining the State Department’s Colombia lot file.  Unsurprisingly, searching for, and requesting documents from, the WRC is not exactly easy.

“Only bother us for the very old stuff. Bother the agency for the old stuff.”

US National Archives regulations state, “NARA’s Federal records centers [including the Washington Records Center] store records that agencies no longer need for day-to-day business.  These records remain in the legal custody of the agencies that created them.  Requests for access to another agency’s records in a NARA Federal records center should be made directly to the originating agency.  We do not process FOIA requests for these records.”  One of NARA’s blogs, the FOIA Ombudsman, has recently elaborated: “What if an agency receives a FOIA request for an agency record that is being stored in an FRC? It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.”

But NARA’s processes generally do not work in practice. Agencies don’t keep records of the documents they have transferred to the Washington Records Center, so they will usually respond with an incorrect “no documents” response to FOIA requests.  Likewise, the main NARA research facilities do not currently have a method of alerting researchers that the files they are seeking may be at the WRC.

An (online) SF 135.

There is only one relatively convoluted process that gives researchers a fighting chance to force the release of documents held at the Washington Records Center.  A researcher must schedule an appointment to visit the WRC, pass through one of the nation’s more onerous security checks, and view the SF 135 forms onsite.  SF (Standard Form) 135s are the documents that agencies are required to fill out when they transfer records to the Washington Records Center.  In theory, they are required to describe with some degree of specificity –to box or folder level– the documents they are transferring to the WRC.  Once inside the WRC, researchers can easily view the SF 135s, organized chronologically by Record Group, with limited restrictions.  Researchers can then use these documentary roadmaps to file FOIAs or MDRs to the originating agencies (not NARA) to free “recent historical” records from purgatory.

“X marks the spot.” Where the SF 135s are held.

I recently had the opportunity to present some of my thoughts on the difficulty of getting access to documents held at the Washington Records Center to the Acquisitions & Appraisal and Records Management sections at the annual meeting of the Society of American Archivists.  I was fortunate to have some back and forth with archivists, including some who worked at NARA and the WRC, after my presentation.  Their position, as I understood it, was that they did a good job storing the records of agencies, as is their mandate; it was not the WRC’s fault if agencies weren’t searching the records stored there in response to FOIA requests.

Fair enough.  But from the perspective of historians, researches and access to information advocates, the current status quo is not acceptable, and changes –on both the agency side and the NARA side– are needed to fulfill NARA’s mission to “drive openness, cultivate public participation, and strengthen our nation’s democracy through public access to high-value government records,” including the high-value documents at the WRC.

There are a number of steps that could be taken to fix this problem relatively easily.

  • The comprehensive solution would be for NARA to end its policy of warehousing other agency records without having the authority to release them. (This policy would also benefit NARA proper, the Presidential Libraries, and the National Declassification Center).  As is often pointed out, this would require proper funding of the Archives, a change to NARA’s regulations on records transfers (36 CFR Part 1235), and would possibly take a legislative tweak (probably to 44 U.S.C. 2107 and/or 2108), but as seen by recent legislation strengthening OGIS’s independence and improving the Presidential Records Act, there are certainly bipartisan allies on Capitol Hill who would support commonsense reforms that would allow citizens to access their historical records more easily.
  • Short of this, DOJ OIP and OGIS, the agencies that oversee FOIA compliance, could undertake an effort to educate agencies on their responsibility to search records stored at the Washington Records Center, and ensure that they do so in a timely manner. DOJ OIP and OGIS should also review all new FOIA regulations to ensure they state clearly what records are stored at the WRC, how requesters can access them, and the agency’s procedures for efficiently searching WRC records.
  • NARA is also not entirely off the hook. A vast quantity of the records at the WRC actually should be in the stacks of the National Archives.  What is NARA doing to ensure that the documents move efficiently from the WRC to NARA, from purgatory to heaven?
  • It is also far from clear that NARA’s procedures and policies used by agencies to search the documents at the WRC after they are requested via FOIA are efficient.
  • Even if nothing else changes, it is anachronism that potential researchers have to drive to Suitland, Maryland to see the index of the files held at the WRC. At a minimum NARA and agencies should be required to post all future SF-135 forms online.  (This has been suggested at Federal FOIA Advisory Committee meetings, but not acted upon.)  Additionally, NARA should seriously consider a project to digitize and post all SF-135s in its collection, so that the public can know which records are theirs. The reward would likely be worth the work.

In the meantime, historians, researchers, and requesters hoping to access records from several decades ago will have put this line in all of their FOIAs, MDRs, and appeals: “As you know, your agency is required to search the records stored at NARA’s Washington Records Center in Suitland, MD, but still technically under your agency’s control.  For more information see 36 CFR 1250.8,” and utilize the onerous SF-135 process.

As Indiana Jones once said, “the SF-135 marks the spot.”

NARA Will Re-Open Public Comment on Controversial ICE Records Schedule, and More: FRINFORMSUM 9/27/2018

September 27, 2018

NARA to Re-Open Public Comment on Controversial ICE Records Schedule

The National Archives and Records Administration (NARA) will re-open a 15-day public comment period for a controversial Immigration and Customs Enforcement records schedule that would have allowed the agency to designate as temporary (and then destroy) a wide array of sensitive immigrant detainee information. The proposed records schedule that ICE (and every agency) must submit to NARA for approval, sought to destroy records on sexual abuse claims filed by detainees while at ICE facilities and investigative records on detainee deaths. NARA received thousands of comments, as well as letters signed by members of both the Senate and the House, opposing the plan; Archivist of the United States David Ferriero said, “I will not approve the pending ICE schedule until all comments are adjudicated and resolved to my satisfaction.”

FOIA Suit Shows ICE is Letting FOIA Office Hobble Along on Life Support

The Civil Rights Education and Enforcement Center is suing ICE for failing to respond to FOIA requests in a timely manner – to say nothing of responding within the 20-day statutory requirement. CREEC filed nine FOIA requests between August and September of last year – all concerning treatment of immigrant detainees – and has yet to receive a response. Long wait times for FOIA requests are the norm, but ICE made it nearly impossible for CREEC to even obtain the status of the requests, and did not provide an estimated timeline for completion. A court filing submitted by ICE sought leniency, citing budget cuts and noting that, as of August 2018, the agency was the defendant in 78 FOIA lawsuits and “has only assigned three ‘litigation processing unit’ employees to turn over documents at the discretion of judges in those cases. And those three employees are also being made to take up other duties.” The declaration is at odds with the agency’s FY 2018 budget, which ballooned by $2 billion in a year and does not include a line item to increase the FOIA office’s funding.

Documents Shed Light on Origin of DHS’s Family Separation Policy

FOIA documents won by Open the Government and the Project on Government Oversight provide, among other things, “evidence that Secretary of Homeland Security Kirstjen Nielsen signed off on a policy of family separation despite her repeated claims denying that there was such a policy.” An April 23 memo provides three options for curbing illegal immigration and argues that family separation is the most effective because, in part, “it is very difficult to complete immigration proceedings and remove adults who are present as part of FMUAs [family units] at the border. In fact, only 10 percent of non-Mexican FMUA apprehended during the Fiscal Year (FY) 2014 surge have been repatriated in the nearly four years since their illegal crossing.” Other documents won in the release detail DHS’s response to court orders demanding a stop to the family separation policy, including a July 11 email from a DHS official directing “employees to deport families as quickly as possible, as a way of clearing out space for new families.”

NYT Sues FCC Over Net Neutrality FOIA Response

The New York Times is suing the Federal Communications Commission over its failure to adequately respond to a FOIA request for records concerning an alleged DDoS attack on the agency’s website during a comment period for a proposed rule that would have rolled back net neutrality. The Times’ FOIA request sought “the IP addresses, timestamps, and comments, among other data, for all public comments regarding the FCC’s proposed rule that were submitted between April 26, 2017 and June 7, 2017.” The FCC denied the request, citing the FOIA exemption designed to protect personal privacy, (b)6), and the exemption intended to prevent the disclosure of law enforcement techniques, (b)(7)(E). The Times’ suit takes the agency to task, arguing that “the FCC has responded to The Times’s attempt to resolve this matter without litigation with protestations that the agency lacked the technical capacity to respond to the request, the invocation of shifting rationales for rejecting the Times’s request, and the misapplication of FOIA’s privacy exemption to duck the agency’s responsibilities under FOIA.”

FOIA Pins Admiral Tapped to Lead SOUTHCOM to “Fat Leonard” Scandal

FOIA requests filed by The Washington Post and corroborated by Pentagon officials tie vice admiral Craig S. Faller to the Navy’s “Fat Leonard” scandal, which has ensnared 60 Navy admirals to date. (Faller is also the senior military official to Defense Secretary Jim Mattis and has been nominated by the White House to head U.S. Southern Command.) The documents show that while Faller was ultimately cleared of wrongdoing, he was investigated after Leonard told officials he gave Faller gifts and “paid for a prostitute to entertain Faller after the Christmas 2004 party in Hong Kong.”

Will SNAP Sales Figures be Hidden Under New (B)(3) Exemption?

Public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP), which “went from a $25 billion program in 2004 to a nearly $80 billion program by 2013,” remains in doubt. Earlier this year in a FOIA lawsuit, the Eight Circuit Court of Appeals ruled that the data – which is maintained by the Department of Agriculture – is public information, “But Supreme Court Justice Neal Gorsuch recently put a hold on the release of data to allow the food industry to appeal to the Supreme Court.”

MuckRock’s Michael Morisy highlighted this May that an amendment to the the House Agricultural Appropriations Bill proposed exempting SNAP information under FOIA’s expansive (b)(3) exemption, and National Newspaper Association President Susan Rowell’s recently urged the Senate Conference Committee working on the Agricultural Appropriations Bill, which is expected to be voted on next week, to omit any such amendment from the final bill. Rowell notes, “FOIA already has eight very strong exemptions to protect legitimate interests against disclosure, but the law is written to protect the public’s right to know. The benefit of the doubt should always be with the public. In this case, there is a strong interest in knowing how SNAP benefits are used. They are funded from an ever-rising taxpayer contribution. There are frequently allegations of fraud in the program, gaps in service from ‘food deserts’ where hungry people cannot find groceries, and price gouging. This is a program crying out for smart journalists like the Argus team to dig in, and educate their readers. Both SNAP users and taxpayers would benefit from these disclosures.”

Yeltsin: “Let Us … Get Rid of the Nuclear Footballs” – “No Need to Drag Around … These Briefcases”

Possibly for the first time in U.S. diplomatic history, the “Nuclear Football” – the nominally secret command-and-control system used to assure presidential control of nuclear use decisions – became a subject of a heads-of-state discussion when Russian President Boris Yeltsin proposed getting “rid” of it during a meeting with U.S. President Bill Clinton in September 1994. According to a recently declassified meeting record published for the first time by the National Security Archive, Clinton discouraged the idea on the grounds that the Football was an important symbol of civilian control of the military. When Yeltsin brought up his proposal at a second meeting in 1997, Deputy Secretary of State Strobe Talbot commented that it was better for presidents “to have these devices with you at all times rather than to have the function assigned to a computer somewhere or to anyone else.”

The U.S. and Climate Change: Washington’s See-Saw on Global Leadership

President George H.W. Bush initially sought a leadership role for the United States on the environment, according to declassified documents recently published by the Archive. Contrary to the popular impression that Republican presidents have always downplayed such concerns, the record shows that some of Bush’s advisers – as under Ronald Reagan – early on recommended severing the “link between economic development and deterioration of the environment,” and demonstrating that “wise, active stewardship over the resources of our planet” was a “responsibility we have to ourselves and as our legacy to future generations.”

The new documentation provides a nuanced picture of some of the continuities that characterized U.S. environmental policy from Reagan to Obama, but there is clear evidence that Reagan and both Bush presidents believed that greenhouse emissions and other problems were real and that even senior aides to George W. Bush sought actions “grounded in science” and designed to encourage renewed cooperation with other countries on restricting emissions.

Cyber Brief: White House and Department of Defense Cyber Strategies

Last week the White House and the Defense Department issued new documents on cyberspace strategy. This week, our Cyber Brief includes the new issuances and presents them with current national security and strategy documents for immediate context as well as past White House and Department of Defense documents tracing the evolution of cyber strategy in the United States Government.

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Are 98% of Federal Agencies Actually on Track to Manage Electronic Records by 2019 Deadline? FRINFORMSUM 9/20/2018

September 20, 2018

NARA Report Says 98% of Agencies are on Track to Manage Digital Records by 2019 Deadline. Really?

The National Archives and Records Administration’s Federal Agency Records Management 2017 Annual Report touts an eyebrow-raising statistic: “Ninety-eight percent of agencies show confidence in meeting the OMB/NARA Managing Government Records Directive (M-12-18) target to manage all permanent electronic records in electronic format by December 31, 2019, and say these records are already created and maintained electronically.” This statistic – generated from analyzing agencies’ self-assessments of their own progress – should be taken with a grain of salt. A true test of how well agencies are prepared to manage their electronic records is how they respond to FOIA requests for such records – and so far, the rubber is nowhere near meeting the road.

The National Security Archive’s 2018 FOIA Audit contradicts these agency self-assessments. Our analysis found that two out of five federal agencies claimed that they were either unable or not required to respond to a targeted Freedom of Information Act (FOIA) request for agency emails. Many more lost the requests. The responses show that – well over a year after agencies were required to manage email electronically – FOIA requesters are often not seeing the benefit of any improved electronic records management. From the National Security Archive’s vantage point, it would be better if NARA actively oversaw this electronic records management process, as opposed to taking agency self-assessments at their word.

The NARA report’s analysis of results from the self-assessments does contain some interesting information, including:

  • To the question “When was your agency’s directive(s) last reviewed and/or revised to ensure it includes all new records management policy issuances and guidance?” Seventeen agencies admitted it’s been since at least 2012, making it hard to see how 98% of agencies have incorporated electronic management guidance directives issued afterwards.
  • Fifteen agencies said there were no internal records management trainings.
  • Thirty-one agencies claimed they had not identified the vital records of all their program and administrative areas.
  • Thirty-three agencies said staff responsible for FOIA can never search for records without contacting others.
  • Twenty agencies don’t track when their permanent records are due to be transferred to NARA.
  • Ten agencies admitted that they do not comply with the requirements under Executive Orders 13526 and 13556 for managing classified and controlled unclassified information in systems that contain electronic records.
  • Seventy-eight agencies do not have approved records schedules covering electronic messages including text messages, chat/instant messages, voice messages, and messages created in social media tools or applications that meet the definition of a Federal record.
  • Twenty-one agencies said they did not have the ability to search across all systems to find electronic records needed for agency business, including FOIA, and
  • Nearly three years after the Hillary Clinton private email controversy, 24 agencies still do not have “documented and approved policies that address the use of personal email accounts, whether or not allowed, that state that all emails created and received by such accounts must be… forwarded to an official electronic messaging account of the officer or employee no later than 20 days after the original creation or transmission of the record.”

DOJ Didn’t Want to Step Into Census Fight on the Heels of the “The Whole Comey Matter”

An unredacted September 8, 2017 email released as part of an ongoing lawsuit confirms that the Justice Department did not initially want to add a controversial citizenship question to the 2020 census. The email, written by the Commerce Department’s Earl Comstock, notes that “Justice staff did not want to raise the question given the difficulties Justice was encountering in the press at the time (the whole Comey matter).” Comstock also directed staff to determine if Commerce could add the citizenship question to the census on its own.

This July the Commerce Department released redacted versions of the September 8 email, among others, in court filings that that show the Trump administration discussed adding a citizenship question to the 2020 census within months of Trump taking office. The 600-plus emails, which NPR has filed FOIA requests for to help peel back the redactions, contradict the administration’s earlier claims that the question was being added at the request of the Justice Department to better enforce the 1965 Voting Rights Act.

Trump Orders DOJ to Declassify Info on Investigation into Russian Election Interference – But Unredacted Reports Unlikely

President Trump gave the DOJ the highly controversial order to declassify information related to the investigation into Russian interference in the 2016 election with the purported belief this will clear a cloud that has hung over his administration since Inauguration. The statement specified that the DOJ was to “immediately declassify portions of the secret court order to monitor former campaign adviser Carter Page, along with all interviews conducted as officials applied for that authority,” as well as to release unredacted text messages of certain FBI officials.

Many of the documents at issue are the subjects of current FOIA litigation, including cases brought by USA Today’s Brad Heath and his attorney, Mark Zaid, and investigative reporter Jason Leopold. The government, as a matter of routine, redacts too much information on baseless national security grounds, and some of these documents should have been released already under the FOIA, but the political nature of the order is unsettling to many.

Politicization concerns aside, it’s not likely that Trump will be able to get the records released fully redacted. As Zaid tells the Washington Post, “In our FOIA cases, the Department of Justice — Trump’s DOJ — has ardently argued that disclosure would harm existing investigations and damage national security.” Records concerning an ongoing investigation, particularly those being withheld to protect sources and methods, are among the most highly guarded in the government and are incredibly unlikely to be released.

Trump, as evidenced by the JFK Assassination Review Board records release, has also proven unable to corral a bureaucracy of securocrats or rein in DOJ lawyers who can stymie the declassification of records that are of incredibly high public interest, and whose release is backed both by the president and congressional mandate. As the National Security Archive sees regularly, all it takes is one reviewer at one agency to say a document must be keep secret, and it will stay secret despite the sometimes-overwhelming merits of declassification.

It should also be noted that the president’s order was issued in a press release, not a formal directive, raising questions about agencies’ ability to pushback against release.

FISA Court Makes it Easier to Target Journalists

The Freedom of the Press Foundation, together with the Knight First Amendment Institute, has won documents over the course of an ongoing FOIA lawsuit that shows “the Justice Department’s rules for targeting journalists with secret FISA court orders.” The FISA court rules are less stringent than those for obtaining subpoenas, warrants, and court orders against journalists and raise several key questions, including how many times these orders have been issued, and “If these rules can now be released to the public, why are the FBI’s very similar rules for targeting journalists with due process-free National Security Letters still considered classified? And is the Justice Department targeting journalists with NSLs and FISA court orders to get around the stricter ‘media guidelines’?”

Judge: DOJ Can’t Hide Communications with White House Counsel Under FOIA Exemption 5

A Cause of Action Institute FOIA lawsuit has won an important holding from U.S. District Court Judge James Boasberg that shoots down the DOJ’s attempt to misuse a FOIA exemption designed to protect attorney/client privilege and deliberative process. In a suit seeking DOJ communications with the White House Counsel’s office concerning the implementation of a controversial House Committee on Financial Services directive (that instructed 12 agencies to treat communications with the committee as “congressional records” not subject to FOIA), “Judge Boasberg vigorously rejected DOJ’s attempt to withhold records.” Boasberg, who reviewed the documents in camera and there determined many of the DOJ’s arguments did not hold water, berates the DOJ for redacting a White House email as follows:

“Nowhere does the White House directly ask for legal advice in the email, nor is there any other statement that can even be fairly construed as a solicitation for legal counsel. Rather, the body of the email begins with the acronym ‘FYI,’…”

Cause of Action has a thorough rundown here.

Secretary Chao’s Government Flights Cost Nearly $100K

Transportation Secretary Elaine Chao’s government flights cost – between January and August of 2017 – $94,000. Politico reports that during this time Chao flew on private Federal Aviation Administration flights rather than commercial ones, and stopped the habit once Health and Human Services Secretary Tom Price faced intense scrutiny for his travel expenses. Politico’s reporting is based on records recently released by the FAA as part of a FOIA lawsuit, and are significant insights into Chao’s travel because “the secretary does not release any public schedule of her official business.”

The Cyber Glossary

The National Security Archive’s Cyber Vault just launched the Cyber Glossary – a new resource for the cybersecurity community, journalists, students, and the general public.

The cybersecurity field features a profusion of issues and concepts that complicates the work of advanced practitioners and discourages those without technical training. The Cyber Vault has collected and organized hundreds of terms from a variety of government sources in one place to facilitate the public’s navigation of the terrain. Each entry is identified with a source – often more than one.

The Cyber Glossary will have regular updates from agencies such as DHS, DOD, and the NSA. We look forward to your feedback and further suggestions.

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Trump Tweets on Investigation Don’t Undercut Glomar, Senate Democrats to file FOIA Suit for Kavanaugh Docs, and More: FRNFORMSUM 9/13/2018

September 13, 2018

DC Circuit: Trump Tweets on Investigation Don’t Undercut Glomar

The District Court for the DC Circuit is upholding the DOJ’s Glomar response – in which an agency claims it can neither confirm nor deny the existence of records – to FOIA requests seeking information about a DOJ investigation into President Trump. The plaintiffs – the James Madison Project and Politico’s Josh Gerstein – argued that the DOJ should not invoke a Glomar response after Trump issued Tweets that appear to confirm he is a target of an FBI investigation. The court, however, claims Trump’s tweets lack enough specificity to undercut the Glomar.

Senate Democrats to file FOIA Suit for Kavanaugh Documents

Senate Democrats filed FOIA requests with the National Archives and Department of Justice for records on Supreme Court nominee Brett Kavanaugh, including the years he spent as lawyer and staff secretary to President George W. Bush – and have yet to receive a response. Sen. Richard Blumenthal (D-Conn.) said they would be filing suit later this week to try and secure the documents’ release. Democrats argue the documents are of high public interest, and that “the time period is crucial for understanding Kavanaugh’s thinking on controversial issues including torture and surveillance.”

DHS Transferred FEMA Funds to ICE Detention Centers

A recently-released budget document shows the Federal Emergency Management Agency was nearly $10 million poorer by the start of this year’s hurricane season because the Department of Homeland Security transferred the money out of the disaster relief agency’s operations and supports budget and “into accounts at ICE to pay for detention and removal operations.” FEMA is refuting specific claims that the funds came from accounts dedicated specifically to disaster relief. The budget document was released by Sen. Jeff Merkley (D-Ore.) as Hurricane Florence barrels towards the Eastern seaboard and as President Trump defends his agency’s handling of last year’s hurricane season. FEMA was criticized for its response to last year’s storm season, particularly its response to the devastation in Puerto Rico; “New data shows that nearly 3,000 people died as a result of the hurricane and many people continue to live without power on the island. An after-action report by FEMA released in July shows that they agency vastly underestimated how much food and fresh water it would need, and how hard it would be to get additional supplies to the island.”

First Meeting of the 2018-2019 FOIA Federal Advisory Committee

The FOIA Advisory Committee met for the first time for its 2018-2019 session. During the meeting the new panel identified the topics its three subcommittees will focus on – Records Management, Vision and Time/Volume. The next meeting will be held on November 29.

FOI Sheds Light on Bizarre Ethics Breach at Colorado State

Public records requests to Colorado State University and its police department have helped unveil the strange story of former CSU chemistry professor Brian McNaughton. The story, recently published in the Chronicle of Higher Education, shows McNaughton as an associate professor obsessed with securing a raise, more money for his lab, and tenure – to the extent that he forged an offer letter from the University of Minnesota, which included a promise of a $1.5 million grant to support his research, to prod CSU to cede to his demands. The ruse worked; McNaughton got a $16,000 raise and additional upgrades for his lab.

But things began falling apart when his wife, Stacy, left him. Shortly thereafter, an anonymous letter arrived at the CSU provost office with allegations of McNaughton’s falsehoods. CSU – a public university funded by taxpayers – reached an agreement with McNaughton that would allow him to leave quietly to a position in Delaware. Soon a private investigator, frustrated with the university’s response, began digging, filing FOI requests, and seemingly launching a targeted social media campaign against McNaughton. McNaughton was ultimately charged by Larimer County prosecutors with “attempting to influence a public servant, a felony punishable by up to six years in prison” – a charge he pleaded down to 100 hours community service.

TBT Pick – Declassified Documents on the September 11, 1973 Military Coup in Chile

This week’s #TBT pick is chosen with the 45th anniversary of the military coup led by Chilean General Augusto Pinochet in mind. The posting is a 1998 selection of declassified documents analyzed by the Archive’s Chile Documentation Project director, Peter Kornbluh, and sheds light on the violent overthrow of the Allende government and its aftermath. The documents featured in the posting include:

  • Cables written by U.S. Ambassador Edward Korry after Allende’s election, detailing conversations with President Eduardo Frei on how to block the president-elect from being inaugurated. The cables contain detailed descriptions and opinions on the various political forces in Chile, including the Chilean military, the Christian Democrat Party, and the U.S. business community.
  • CIA memoranda and reports on “Project FUBELT”–the codename for covert operations to promote a military coup and undermine Allende’s government. The documents, including minutes of meetings between Henry Kissinger and CIA officials, CIA cables to its Santiago station, and summaries of covert action in 1970, provide a clear paper trail to the decisions and operations against Allende’s government.
  • National Security Council strategy papers which record efforts to “destabilize” Chile economically, and isolate Allende’s government diplomatically, between 1970 and 1973.

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Guatemalan President Shuts Down UN-Backed Anti-Corruption Probe, Taliban Confirm Haqqani Death, and More: FRINFORMSUM 9/6/2018

September 6, 2018

Guatemalan President Shuts Down UN-Backed Anti-Corruption Probe

Guatemalan president Jimmy Morales recently announced he will not renew the mandate of the UN-backed anti-corruption probe, the International Commission Against Impunity in Guatemala. The Commission (commonly referred to by its Spanish acronym CICIG) has already racked up over 300 convictions, two former presidents are in jail as a result, and Morales and his National Convergence Front are under investigation by the Attorney General’s Office as a result of CICIG’s work. Morales is currently shielded by presidential immunity, but “following a petition by the Attorney General’s Office, a commission is currently working to determine whether or not there is enough evidence to remove the president’s immunity.”

The National Security Archive’s Kate Doyle spoke with NPR about what this means for justice and judicial reform in Guatemala, arguing “President Morales’ decision to cancel the mandate of CICIG and essentially order its investigations to come to a grinding halt is a terrible blow to the progress that Guatemala has made in justice.”

Visit the Archive’s Guatemala documentation page for more information.

Jalaluddin Haqqani

Taliban Confirm Death of Jalaluddin Haqqani – 4 Years After Death Suspected

The Taliban have announced the death of Haqqani Network patriarch Jalaluddin Haqqani. The news confirms Afghan officials’ assertions that Haqqani has been dead for “at least four years – an assertion confirmed by one aide to Mr. Haqqani in 2015.” There is speculation that the announcement was intended to coincide with the arrival of Secretary of State Mike Pompeo and other American military officials in Pakistan to discuss an end to the war in Afghanistan.

The Haqqani Network traditionally acted as a somewhat autonomous affiliate of the Taliban rather than a subsidiary– a separation evidenced in part by the fact that the State Department declared the Haqqani Network a Foreign Terrorist Organization but not the Taliban. Recently, however, the separation appears to have disappeared, and Jalaluddin’s son Sirajuddin is both the Haqqani Network leader as well as the deputy emir of the Taliban.

More on the history of the Haqqani network, informed by FOIA releases to the National Security Archive, can be found here and here.

FOIAonline Glitch Publishes Dozens of Social Security Numbers

FOIAonline made public dozens of social security numbers and other personally identifiable information during a July software update that transitioned the portal from its 2.0 version to the 3.0. The information was removed a month later after a reader tipped off CNN, prompting the news agency to notify the government about the inappropriate postings.

FOIAonline, maintained by the Environmental Protection Agency, is the FOIA portal used by over a dozen agencies and components, including the National Archives and Records Administration and the Department of Justice’s Office on Information Policy. While the EPA fixed the glitch, it remains up to individual agencies to properly input information into the system, and there is no disclaimer for those who use the FOIA portal to keep sensitive information out of their FOIA requests.

Interior Dept. Photographer Crops Inauguration Photo at President Trump’s Request 

A FOIA release from the Office of the Inspector General at the Interior Department shows that a departmental employee “edited official pictures of Donald Trump’s inauguration to make the crowd appear bigger following a personal intervention from the president.” The Guardian reports, “The records detail a scramble within the National Park Service (NPS) on 21 January 2017 after an early-morning phone call between Trump and the acting NPS director, Michael Reynolds. They also state that Sean Spicer, then White House press secretary, called NPS officials repeatedly that day in pursuit of the more flattering photographs.”

The recently released records were not included in the report on the inauguration photo kerfuffle that the Interior Department’s IG released last year.

TBT Pick – “Jalaluddin Haqqani’s Emergence As a Key Taliban Commander”

This week’s #TBT pick is chosen with the Taliban’s recent admission of Jalaluddin Haqqani’s death in mind. It is an unclassified January 7, 1997 State Department cable – released in response to a National Security Archive FOIA request and analyzed by Archivist Barbara Elias – on the elder Haqqani’s rise in the Taliban. The cable reports him to be “more liberal” in his opinions on social policy, such as women’s rights, than other Taliban officials. But he did not seem to have the political clout to influence social policy. Haqqani nevertheless remained respected as a competent and influential officer in Taliban military affairs. His ties to “various radical Arab groups,” concern the Department of State, as one source reports that “in exchange for weapons and money… [he is] offering shelter for various Arabs in areas of Paktia province.”

Elias is quick to point out that, between 1986 and 1994, Haqqani was a “unilateral” CIA asset. Steve Coll’s The Bin Ladens: An Arabian Family in the American Century, notes during that time “he received tens of thousands of dollars in cash directly from CIA officers working undercover in Pakistan, without any mediation by Pakistani intelligence, which normally handled and relayed the great majority of CIA funds to the Afghans.” Haqqani’s relationship with the US deteriorated in the late-1990s after the US bombed an HQN-linked training camp in retaliation for al-Qaida attacks on the US embassies in Kenya and Tanzania. Coll notes Haqqani’s relationship with bin Laden deepened after the US bombings, and he “helped and protected Osama [bin Laden] and the Arab volunteers as they built their nascent militia. (Osama later referred to Haqqani as a “hero mujahid sheikh”…)… Osama would have had no reason to know about Haqqani’s opportunistic work with the CIA, but he and his Arab volunteers benefited from it.”

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