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Sen. Grassley Sums-Up Sunshine Week Sentiment, Says FOIA Posting Delays Don’t “Meet the Common-Sense Test”: FRINFORMSUM 3/15/2018

March 15, 2018

Senator Grassley tells OIP their explanation doesn’t pass the common sense test.

OIP’s Position Doesn’t Pass the “Common-Sense Test”

This week the Senate Judiciary Committee held a hearing on “The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead.” The hearing consisted of one panel, all government witnesses – the Justice Department Office of Information Policy’s Melanie Pustay, the Office of Government Information Services Alina Semo, and the Government Accountability Office’s David Powner.

Pustay, predictably, reiterated OIP’s misleading FOIA statistics – citing a 90% release rate even though this number excludes a large swath of requests that are not processed for disclosure because the requests were denied for anything from fee reasons to referrals, and counts the release of merely one word as “a partial release.” Pustay also touted the newly unveiled- FOIA portal, although didn’t address the need for the portal to improve the processing of FOIA requests on the back end to live up to its potential.

Senator Leahy expresses disbelief at OIP’s insistence that 508 should hold up posting documents online.

Most of the eyebrow-raising moments came during the question and answer period, which saw senators underwhelmed by Pustay’s responses to their questions. At one point Senator Grassley told Pustay that her explanation for why the “release to one, release to all” policy had yet to be finalized (Pustay said “agencies have concerns about the time and resources it would take to properly code and upload documents online after a single request”) didn’t pass “the common-sense test.”

Pustay later dug in her heels by saying 508 compliance concerns –  a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities since 1998 – were a valid reason for agencies to hesitate posting documents online.

Senator Patrick Leahy disagreed, and failed to see how posting an OCR’d version of a PDF wasn’t a better alternative than posting nothing at all. The FOIA Federal Advisory Committee recommends that, instead of either not posting documents or even removing previously posted documents, agencies “remediate documents that are not currently 508 compliant—documents that have optical character recognition are also much easier for all individuals to search through and utilize,” and “ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”

Leahy also pushed back on Pustay’s claims that OIP has robust FOIA training and guidance program; saying “I don’t care about the robust training. The word robust has become the biggest misused cliché in government.”

GAO’s David Powner had an excellent observation towards the end of the hearing, particularly in light of OIP’s seeming ongoing unwillingness to compel agencies to follow the law. Powner told the committee that “If you don’t have the backing of the [Executive Office of the President] and the Office of Management and Budget, it’s very hard to get the right openness and progress moving the ball forward.”

NSArchive FOIA Audit Shows Agencies Struggling to Respond to FOIA Requests for Email

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 submitted by the National Security Archive. The responses to the Archive’s FOIA request show that a year after agencies were required to manage email electronically, FOIA requesters are often not seeing the benefit of any improved email management.

The Archive’s Audit team filed the same FOIA request with all 100 federal agency FOIA offices that are required to submit an annual FOIA report to the Department of Justice’s Office of Information Policy. The request sought all emails received between January 20, 2017, through April 28, 2017, from any Republican National Committee domain, including but not limited to The Archive wanted to see which agencies were receiving emails from email accounts in light of reporting that prominent members of President Trump’s administration were inappropriately using their RNC email accounts rather than their White House addresses.

Check out the posting at the National Security Archive for the audit results.

GAO Report: Agency FOIA Shops Need to Take Additional Steps

A recent Government Accountability Office (GAO) report, “Agencies Are Implementing Requirements but  Need to Take Additional Actions,” analyzed the extent to which 18 federal agencies have implemented six FOIA requirements. Specifically, GAO looked for whether the agencies had  1) updated response letters to inform requesters of the right to seek assistance from FOIA public liaisons, 2) implemented request tracking systems, 3) provided training to FOIA personnel, 4) provided online access to records, including frequently requested records, 5) designated chief FOIA officers, and 6) published updated FOIA regulations as required by the 2016 FOIA Improvement Act.

GAO found six agencies have yet to appoint a chief FOIA officer and only five had updated their FOIA regulations, noting that “Until these agencies address all of the requirements, they increase the risk that the public will lack information that ensures transparency and accountability in government operations.”

Regarding agencies’ growing backlogs the report also noted that agencies with the largest backlogs – which the agencies attributed to more and more complicated FOIA requests – that “these agencies lacked plans that described how they intend to implement best practices to reduce backlogs,” going on to say that “Until agencies develop such plans, they will likely continue to struggle to reduce backlogs to a manageable level.”

Secret Service and White House Win Rosemary Award for Worst in Open Government in 2017

The Secret Service and the White House have emerged as the dubious winners from the hard-fought competition for the Archive’s infamous Rosemary Award for worst open government performance of 2017.

The Secret Service clinched the 2017 award for its claim that “There is no system for keeping track of Presidential visitors at Mar-a-Lago.” This remarkable assertion was made in an October 4, 2017, court filing during the course of the National Security Archive’s Freedom of Information Act (FOIA) lawsuit seeking the Secret Service’s White House visitor logs, along with Secret Service records of presidential visitors at other Trump properties.

The award, which the Archive began bestowing in 2005, is named after President Nixon’s secretary, Rose Mary Woods, who testified she had inadvertently erased 18 and ½ minutes of a crucial Watergate tape when she stretched to answer the phone with her foot still on the transcription pedal. Previous Rosemary Award “winners” include the CIA, the Treasury Department, the Air Force, the FBI, the Justice Department (twice), and Director of National Intelligence James Clapper.

Read the rest of the posting and a list of runners-up for this uncoveted award here.

Sunshine Week Must-Reads

There have been quite a few good articles published this Sunshine Week on the state of FOIA and open government. A handful of them are:

Afghan War Info Released

The Special Inspector General for Afghanistan Reconstruction (SIGAR) recently published an addendum to its January report to Congress that provides the information that was withheld from the January report at the order of the Defense Department. Steve Aftergood notes that “The basic thrust of the new data is that Afghan government control of the country is at its lowest reported level since December 2015, while insurgency control is at its highest.”

Earlier this year the DOD ordered SIGAR not to publish the data – that was marked unclassified – on the war in Afghanistan, a move SIGAR called “troubling.” The DOD reversed course shortly after.

Air Force Secrecy

Defense News reports that the Air Force is restricting press access in a move the agency says is necessary for operational security; specifically the Air Force is “slashing access to media embeds, base visits and interviews as it seeks to put the entire public affairs apparatus through retraining.” The change was announced in a March 1 guidance and is the third such Defense Department guidance in the last 18  months to restrict communications with the public and “creates a massive information bureaucracy in which even the most benign human-interest stories must be cleared at the four-star command level.”

Prior to the release of the guidance the Air Force considered shutting down all press communications for 120 days.

Rep. Mike Gallagher, R-Wis., disagrees with the transparency backslide, saying “the department has it backwards. It is precisely because of the scale of the challenges before us that transparency is more important than ever. I worry that by failing to discuss problems, we will only ensure there is no public pressure to fix them.”

TBT Pick – CIA IG Report Exposes Torture as US Policy

This week’s #TBT pick is chosen with the nomination of Gina Haspel as the new CIA director (pending Senate confirmation) to replace Mike Pompeo in mind. Haspel, as outlined by the Archive’s John Prados, was involved in the agency’s torture program at a black site prison and in the destruction of evidence of waterboarding Abu Zubaydah. This week’s TBT pick is a 2009 posting – a side-by-side comparison of two very different versions of a 2004 report on the CIA’s “Counterterrorism Detention and Interrogation Activities” by Agency Inspector General John Helgerson; one released in 208 by the Bush administration and the other by the Obama administration in 2009. New revelations from the 2009 release include:

  • Details on a number of “specific unauthorized or undocumented torture techniques” not mentioned in the 2008 release, including the use of guns, drills, threats, smoke, extreme cold, stress positions, “stiff brush and shackles,” mock executions and “hard takedown.”
  • A look at the legal reasoning behind the Agency’s use of “enhanced interrogation techniques” and the development of Agency guidance on capture, detention and interrogation.
  • A brief discussion of the history of CIA interrogation, including the “resurgence of interest in teaching interrogation techniques” in the early 1980s “as one of several methods to foster foreign liaison relationships.”

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Forecast for Sunshine Week: Real, Structural Problems with FOIA Punctuated with Bright Spots and Reason for Optimism: FRINFORMSUM 3/8/2018

March 8, 2018

New for Sunshine Week

The Justice Department just launched the new to inaugurate Sunshine Week –  the national celebration of open government and freedom of information. Sunlight Foundation’s Alex Howard has a positive review of the new site (which Archive staff contributed comments and feedback for during its alpha phase), concluding “ is a sterling example of what people can build together, over time, when Congress mandates action in the wake of an agency not following through on an open government commitment.” Congrats to 18F for its hard work building the improved site, but it is important to note that the site will only live up to its full potential if agencies improve their searching and processing of requests on the back end.

Check out the new portal and let DOJ know what you think at

Other Sunshine Week events coming up in the D.C. area include:

A full list of events around the country can be found at

Archive’s 2018 Government-Wide FOIA Audit Coming Soon

The National Security Archive’s 17th Freedom of Information Act Audit is coming soon – with disappointing results of a government-wide survey intended to see how well agencies were searching email in response to FOIA requests.

An earlier series of Archive audits on agencies’ outdated FOIA regulations spurred Congress to mandate that agencies update their regulations within 180 days of passing the FOIA Improvement Act of 2016. (Our 2017 Audit showed that three out of five agencies didn’t update their FOIA rules in spite of Congress’ order to do so.)

In a metaphorical example of the state of FOIA, the EPA recently redacted a document using duct tape. Via Chris Horner

FOIA Still a Colossus. But Will it Thrive?

The Archive’s FOIA Project director Nate Jones has published a must-read article on the state of the Freedom of Information Act as we gear up for Sunshine Week. In the face of arguments that robust transparency is a bad thing, or that the FOIA is crippled and ineffective, Jones’ words speak for themselves:

While noting that it would be a lie if we didn’t acknowledge that FOIA faces real structural problems and ongoing agency efforts to weaken it, Jones argues that FOIA “is a colossus that makes national and local headlines daily, it proves that presidents lie, it tells citizens what their military and intelligence agencies are doing in their name.  But it is exactly because of FOIA’s success and potential that those who prefer secrecy attempt to weaken it both by overt attacks and by active neglect.  Despite this, I am optimistic about FOIA’s future.  It is a uniquely American law that provides us the power to force our government to disclose our secrets.  It will survive, but will it thrive?”

MuckRock: 9 Days of FOIA Exemptions and an Important Email Win 

MuckRock is winding up its countdown to Sunshine Week and Nine Days of FOIA Exemptions: a nine-piece series taking a closer look at each of the FOIA’s nine exemptions. The postings explain what the exemptions really mean behind the statutory language, spurious examples of their invocations, suggestions on how to appeal a particular exemption, and highlights useful additional resources – like FOIA Wiki. (I particularly liked Exemption 3 “No Homers” Day, but they are all worthwhile reading.)

And congratulations to MuckRock for an important win over the CIA in an ongoing FOIA lawsuit concerning the agency’s CREST database. The court found that the agency “can’t require you to know both who sent and received an email when requesting electronic records.” MuckRock is being represented pro bono by the National Security Counselors.

Confirmation of HUD FOIA problems

A second Department of Housing and Urban Development (HUD) official has confirmed that the agency under Secretary Ben Carson is processing politically sensitive FOIA requests “in a fashion different from the normal process” and that the FOIA office faces “undue influence” to handle them outside the normal process. The comments come from Marcus Smallwood and in support of Helen Foster – a HUD employee who made news last week after being demoted to the agency’s FOIA office; while there Foster raised the alarm that the office was understaffed and that she was prevented from handling FOIA requests submitted to the agency by the Democratic National Committee because a Trump appointee believed her a Democrat. “Smallwood accused Carson and senior Hud managers of reprisals against not only Foster for blowing the whistle on the furniture spending, but also of letting important business go uncompleted due to the interdepartmental feud.”

FOIA Suit Tackles HUD’s LGBT Housing Stance

A FOIA lawsuit is seeking information behind HUD’s decision to distance itself from LGBT homelessness and housing issues. The suit specifically seeks information on the agency’s decision under the Trump administration to remove a guide from its website that “provided training on how to provide transgender people equal access in homeless shelters” and why the agency cancelled two pilot programs to reduce LGBT homelessness and disengage from a study on LGBT housing discrimination.

New Findings on Clerical Involvement in the 1953 Coup in Iran

Senior Iranian clerics reportedly received “large sums of money” from U.S. officials prior to the August 1953 coup against Prime Minister Mohammad Mosaddeq, according to a contemporaneous British document located by researchers at the U.S. National Archives and recently posted in full for the first time by the Archive.

The Archive’s Iran Project also published a version of The Battle for Iran, one of three internal CIA histories produced about the coup.  Like the British memo, the document has been released before but with heavy excisions.  The CIA reviewed Battle again and declassified substantial portions of it in response to an Archive Mandatory Declassification Review request.

The role of clerics is one of the remaining unanswered questions surrounding Mosaddeq’s ouster.  More specifically, it is uncertain whether religious figures obtained funds from the West – and if so whether they knew the source of those funds.  The records provide further information on that and other topics, which will continue to be matters of intensive debate.

Archive Analysts in the News

The Archive’s Vietnam Project director, John Prados, recently published an excellent addition to The New York Times’ Vietnam ’67 project. Prados’ article – “Who Threw Westmoreland Under the Bus?” – is the story behind a major turn in the U.S. war effort – and the end of Westmoreland’s controversial tenure in the field – thanks to a “bus” driven by a combo of competing military priorities, presidential politics, bureaucratic obstruction, congressional umbrage, and growing public war-weariness.  All accelerated by critically important reporting by the news media.

Want to know what the U.S. government isn’t telling you about the “sonic attacks” in Cuba? Then check out Cuba Project director Peter Kornbluh’s latest installment for The Nation. The key takeaway about the attacks – which prompted travel warnings and led to a reduction in staff at the U.S. Embassy in Havana – is that the primary victims were CIA agents. Not a single tourist was affected, and the island remains among the safest countries in the world to visit. The article can be read here.

The Economist, analyzing what Kim Jong Un’s recent diplomatic efforts towards South Korea might portend, uses a recent Archive posting – Engaging North Korea II: Evidence from the Clinton Administration – to see what lessons can be drawn from earlier attempts at dialogue. The article, citing a declassified June 2000 cable from Stephen Bosworth wondering if talks would lower nuclear tensions on the peninsula or if the offer was a trap, finds: “it is always a mixed blessing when North Korea’s reclusive, murderous regime says that it wants to talk.”

TBT Pick – Agencies on Alert over Preserving Email

This week’s #TBT pick is chosen with the upcoming Sunshine Week in mind and is the Archive’s 2016 email alert, which analyzed agencies self-assessments about whether or not they were prepared to manage all of their email electronically by the December 31, 2016, deadline. Even through the rosiest-colored glasses of a self-assessment, three agencies admitted they wouldn’t meet the deadline, and one in six agencies didn’t even bother to turn it in.

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FOIA: A Colossus Under Assault

March 7, 2018

Photos from the National Park Service show 2009, left, at President Obama’s first inauguration on the Mall in Washington and 2017, right, the image of President Trump’s inauguration. From the Washington Post

Just over a year ago, a Freedom of Information Act release by the National Park Service demonstrably proved that the President of the United States was lying about the size of his inauguration crowd.  That he was even elected president was, in part, because his opponent had improperly stored federal records on a personal server as Secretary of State and her agency was systematically and untruthfully stating that “no records” of the Secretary’s emails could be located in response to FOIA requests.

A tiny sampling of the stories made possible by the Freedom of Information Act since then confirms that the law’s impact continues to remain gargantuan.  We now know, thanks to FOIA: how the Drug Enforcement Administration was hamstrung from going after suspicious opiate shipments; how the Department of Justice uses parallel construction to construe illegal searches as legal; how Environmental Administrator Scott Pruitt was personally involved in scrubbing climate change data from his agency’s website; how Afghanistan and Iraq wars proceeded day by day from the Secretary of Defense’s desk; how investigations into suspicious deaths of Russians connected to Vladimir Putin on American soil are being conducted; how the Treasury Department justified its claim that recent tax cuts will generate $1.8 trillion in revenue (in just one page); how the rushed construction of a border wall would negatively impact one retirement community and three wildlife areas; and thousands more important local and national stories.

Far from being crippled and ineffective, as some have claimed, FOIA remains a colossus.  It continues to give citizens a fighting chance to force their government to release documents that it would rather hide.

In a metaphorical example of the state of FOIA, the EPA recently redacted a document using duct tape. Via Chris Horner

But we would be lying if we did not admit that the Freedom of Information Act has been chipped away at and weakened –often by the very people and agencies supposedly charged with enforcing it– for decades.  Some fixes to this will be relatively easy; others are needed, but will not likely be made in the foreseeable future.

Despite some incredibly transformative transparency initiates, the Obama administration was, for the most part, anti-FOIA.  It was more than happy to work to efficiently publish the government information that it wanted out, but generally was lukewarm at best in helping citizens get what they wanted released.

The Obama DOJ quietly worked to weaken the 2016 FOIA Improvement Act legislation.  Unlike President Clinton, and despite repeated requests from open government advocates, President Obama’s DOJ refused to conduct a FOIA litigation review.  This means that despite his promises of openness, his DOJ lawyers continued the W. Bush practice of fighting the release of information via FOIA lawsuits as stridently as possible, and still submitted the same bad-faith, boilerplate arguments to judges on why the republic would be threatened if, say, a 31-year-old history of the Bay of Pigs invasion was released.  (Spoiler alert: after DOJ lawyers actually argued this and won, Congress changed the law to forbid it, the document was then released, and the republic did not collapse.)

The oldest pending FOIA request in the federal government is at the US National Archives. NARA state that it cannot process this request itself and is must wait for the originating agency to do so.

Today, the same structural problems of FOIA certainly still exist and new threats are emerging.  Delays are the primary bane of most FOIA requesters.  According to the most recent available data, the oldest FOIA request in the federal government is twenty-five years old and the average processing time request for a “complex request” (40 percent are deemed this) to the Department of Defense is 166 days.  It is certainly not uncommon for requests to take multiple years to complete.

Always appeal, especially “no document” responses.. Via DOJ.

Another continuing structural problem is agency’s ongoing overuse of exemptions to withhold information.  Again according to the most recently available data, only 23.1 percent of all FOIA requests are granted in full to requesters.  36.8 percent are “released in part,” but this is not a useful statistic as it could mean that one word is redacted or that one word (or sometimes less, actually) is released.  20.1 percent of all requests return “no document” responses, but as the State Department email fiasco showed, agency claims of having no records are often wrong.  Less than three percent of all FOIAs are appealed, but within that small sample, Associated Press statistics show that in nearly 33 percent of appeals, the agency improperly withheld information the first time around.  There is a staggering amount of information requested under FOIA that agencies should have released but didn’t.

A “partial release” via FOIA Mapper.

As the law was written, there are nine FOIA exemptions.  In reality, there are closer to 250, including one about watermelon production data, because Exemption Three allows congress to pass new “statutory exemptions.”  Of these 250 exemptions (and more and more continue to be introduced), some are used and abused more than others.  Statutory exemptions give the DIA, NSA, and other DOD components far more leeway to hide information than other agencies.  In 1984, Congress made its most tremendous error tremendous related to FOIA, passing the “CIA Information Act” which made it so that the CIA is no longer even required to search most of its records in response to FOIAs.  To get this gaping cutout, the CIA promised  congress that it would increase the rate of release of its records of historical interest, a promise that it has broken.

“Normal” exemptions one and seven, used to hide national security and law enforcement information, are often used to withhold information that is in the public interest to release.  Just this week, for example, the DOD announced that it would now be classifying previously public information about Missile Defense tests.  The upshot: we will now have a harder time knowing if the tests of our extremely expensive Missile Defense Program are successes or failures.

Wasting government time and funding to redact this? Yes, I agree with the marginalia.

But the exemption that is most urgently due for a rewrite is the Exemption Five, the “withhold it because you want to” exemption.  The 2016 FOIA amendments made it slightly harder for agencies to use Exemption Five; they now have to show how release of this information could be reasonably expected to cause harm to agency processes, and cannot use it to withhold documents that are older than twenty-five years (how the National Security Archive finally got the Bay of Pigs history released).  But because of the exemption’s broad wording (even the DOJ concedes it has “opaque language”), any inter or intra agency communication can be withheld under it.  Most recently, agencies’ have been citing Exemption Five to withhold their Agency Reform Plans from the public.   In a bittersweet development, the House unanimously passed language that would curtail abuse of this exemption in its version of the 2016 FOIA bill, but due to parliamentary maneuverings, it was left out of the Senate bill that eventually became law.  Any legislator wanting to make her mark in the world of transparency should be attempting to attach these few lines of legislation which have already passed the House unanimously onto every bill.

Time for an update. The OMB Guidance on FOIA fees was written before the internet existed and is missing a key word.

Other doable, realistic reforms that could improve FOIA include finally acting on a recommendation made two years ago by the Federal FOIA Advisory committee (I am a member) and Archivist of the United States to update OMB’s FOIA Fee guidance, which was written before the advent of email (and reads like it!  It is even missing one key word).  Updated guidance would ameliorate the key problems of the use of “fee bullying” by agencies to deter requesters and would lock in the legislative reforms that prohibit agencies from charging most fees if they miss their deadlines.

Hopefully government agencies will move more quickly to implement the new slate of recommendations passed by the Advisory Committee.  This action is urgently needed.  Recently the National Park Service removed its entire collection of National Parks Climate Actions Plans, by speciously claiming that it was not compliant with the Rehabilitation Act, which requires that documents are accessible to those with disabilities.  But as the next FOIA Advisory Committee recommendations clearly state, Interior could have and should have left these valuable public releases online.

The recommendations also include instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches—the key reason behind the years and decades-long processing delays.

Finally, it is important that we recognize the largest structural problem of the Freedom of Information Act that is not likely to be fixed in the foreseeable future: the fact that no one is holding agencies accountable for not following the law.

99 percent of federal agencies missed the memo, apparently.

Here is a staggering example: in 2008 the President of the United States instructed every federal agency to reduce its FOIA backlog by ten percent every year.  How many agencies followed this presidential order?  Just a single one: the Department of Health and Human Services.  If agencies had followed this presidential instruction, most if not all of FOIA backlogs would be eliminated and requesters could get their documents in a timely fashion.  But as ninety-nine percent of agencies disobeyed a presidential instruction, no one from the White House, Congress, the DOJ Office of Information Policy, or the FOIA Ombuds Office chastised or prodded agencies, or analyzed why the president’s instruction was not followed.

FOIA offices are quick to blame their worsening production on lack of resources, and this is certainly true… to an extent.  It is also due to antiquated workflow processes, insufficient use of technology, the continued purchase of agency software that is not compatible with FOIA searches and production needs, an unwillingness to release information for the sake of efficiency, and –perhaps most fundamentally– a lack of respect for the Freedom of Information Act by agency heads and other agency employees.

Take for example the recent case of the Department of State.  Secretary Rex Tillerson has begun an all hands on deck effort to reduce the State Department’s abysmal FOIA backlog (Former H.W. Secretary James Baker also did this… but the backlog re-grew in the interim because State did not establish efficient workflow and staffing practices).  We are watching the results of this “FOIA Surge” closely, but are cautiously optimistic that State is doing the right thing and is now releasing more information to more people more quickly.  State Department employees, however, were not so supportive of this effort to comply with the law.  Some went on record calling the FOIA office “Siberia,” and described their new FOIA work as beneath them, even though current DOJ instructions clearly state “FOIA is everyone’s responsibility.”

In the face of this and other public bashing of FOIA officers, the FOIA Ombuds Office and DOJ OIP have remained largely silent.  The underlying reason for this, I believe, is an aversion for employees of one executive branch agency to criticize another agency.  This is why there is no “FOIA beat cop” defending FOIA processors, condemning bad FOIA denials, lobbying for increased FOIA funding, or demanding plans to reduce FOIA delays and backlogs.  For FOIA to reach its potential there does need to be an effective FOIA enforcer, notwithstanding concerns over protecting bureaucratic turf.

Certainly, the courts are a mechanism to do this for individual cases. In the absence of DOJ OIP or OGIS’s ability to force agencies to improve, FOIA litigation is skyrocketing.  The downside of this is that the courts are beginning to clog up and that only relatively wealthy individuals and organizations can afford to turn to judges for justice for their FOIA requests.  The upside is that judges are becoming more active in releasing information and more and more are questioning dubious DOJ lawyer claims of the threat of openness.  People are suing because it works; more information is coming out more quickly thanks to the courts.  More pattern and practice rulings by judges (similar to the recent one won by MuckRock forcing the CIA to begin searching its emails in responses to requests) will continue to improve FOIA production.

But the courts cannot be relied upon to fix how FOIA is administered.  Ultimately –and this will be a heavy lift that will not likely occur soon– the FOIA oversight mechanism of the executive branch needs to be shaken up, made stronger, and more activist.  One possible solution is a model similar to the Council of Inspectors General on Integrity and Efficiency.  Why, after all, are Inspectors General usually feared and FOIA officers usually ignored or scoffed at?  Because, I believe, IGs have an oversight entity with clout backing them up so that they can receive the documents they require, meet their deadlines, and independently follow their charge as described by the law.

LBJ’s edits to his signing statement authored by Bill Moyers.

The United States Freedom of Information Act was the first modern access to information law.  Since it was signed into law by President Lyndon Baines Johnson on July 4, 1966, over one hundred countries have passed access to information laws of their own; some countries have far surpassed the US in providing access to information to their citizens.  The importance of the law should not be understated.  It is a colossus that makes national and local headlines daily, it proves that presidents lie, it tells citizens what their military and intelligence agencies are doing in their name.  But it is exactly because of FOIA’s success and potential that those who prefer secrecy attempt to weaken it both by overt attacks and by active neglect.  Despite this, I am optimistic about FOIA’s future.  It is a uniquely American law that provides us the power to force our government to disclose our secrets.  It will survive, but will it thrive?

This article may be reproduced.

A Sunshine Week Primer on the Agencies Still Trying to Weaken FOIA: FRINFORMSUM 3/1/2018

March 1, 2018

Agencies Still Trying to Weaken the FOIA

Federal agencies are still trying to restrict access to information and weaken the Freedom of Information Act in a variety of ways. With Sunshine Week – the annual, week-long celebration of access to information – around the corner, I wanted to highlight some of the most egregious ways agencies have tried to turn the clock back on FOIA in the last calendar year in an effort to ensure that these efforts continue to be unsuccessful.

1.The Securities and Exchange Commission – Trying to Make It Harder for Students to File FOIA Requests

Earlier this year the SEC sought comments on a proposed rule that would make students and academics jump through more hoops – and potentially pay more money – to file FOIAs.

Currently, to be recognized as filing a FOIA request on behalf of an educational institution and to qualify for favorable fee status, the FOIA only requires that the affiliated organization “have a purpose of scholarly or scientific research.” The SEC, however, wants to make it harder to qualify. The proposed rule (comments were due by Feb. 2 and we are awaiting the final ruling) would require that “A requester in this fee category must show that the request is authorized by, and is made under the auspices of, an educational institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research.”

As reported in JD Supra, this “makes two potentially important changes to the statutory requirement.  First, the statute merely requires the disclaimer of a commercial purpose, the SEC’s rule requires a showing of scholarly purpose.  Second, the SEC’s requirement narrows the noncommercial purposes to only ‘scholarly research’.  While this may seem little more than a cavil, the SEC should not be allowed to erode the FOIA by subtly shifting statutory requirements.”

2. The Department of the Interior and the Bureau of Land Management – Trying to Limit the Number of Requests a Person or Organization Can Submit.

The Bureau of Land Management recently made headlines for its attempts to simultaneously limit the number of FOIA requests a person or organization can submit and increase the costs of filing a request with the agency so it “can recover all of its direct costs.” The suggestion implies that BLM is receiving more FOIA requests than it can handle and that BLM would see any of the money the agency collects from FOIA fees – two things that are not true.

The Washington Post reported in October 2017 on notes from a closed Interior Department meeting that show the genesis of the FOIA-weakening discussion. According to the Post, BLM and DOI representatives “talked about working around environmental analyses that determine whether infrastructure projects harm ecosystems, about stripping conservation groups of the power to sue the BLM if it wrongly approves a project and about limiting the number of federal Freedom of Information Act requests that allow the public to scrutinize how decisions were made.”

The single best way for agencies to get in front of a growing number of FOIA requests remains the same: posting more records proactively, and the easiest way to cut down on processing times and save resources is to embrace a presumption of openness and let more documents go with fewer time-consuming and unnecessary reviews.

3. The Defense Department – Trying to Expand FOIA Exemptions for Third Year in a Row

In 2017 the Defense Department sought – for the third time in three years – a new FOIA exemption that, if approved, would have allowed the agency to expand the FOIA’s (b)(3) exemption to withhold “military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.”  The exemption was proposed in the National Defense Authorization Act of 2018, section 1003 (page 20). The attempt was unsuccessful.

4. House Border Bill Almost Gave CBP Broad FOIA Carve-Out

Last October U.S. Representative Martha McSally (R-AZ) pulled a provision from border bill making its way through the House (H.R. 3548) -that would have exempted Customs and Border Protection (CBP) from FOIA requirements within 100 miles of the border- but only after reporting from the Tucson Sentinel shed light on a move that would have allowed the agency to “operate nearly as secret police, without any public accountability.” McSally, after the story broke, said the transparency carve-out “was ‘not the intent of this bill,’ and offered an amendment to clarify that ‘nothing in that section of this act will allowing waiving of FOIA responsibilities.’” No explanation was provided about the carve-out’s initial inclusion in the bill.

HUD Sees FOIA Office as a Demotion

A Housing and Urban Development official has filed a complaint that she’s been demoted after refusing Secretary Ben Caron’s wife’s efforts to purchase an expensive dining set for his office without proper congressional approval. The demotion? Being sent to the agency’s FOIA office. The New York Times reports that the official “has suffered much humiliation and a loss of reputation, and harm to career advancement, as a result of this retaliatory reassignment” to the FOIA office, which she sees “as an act of retribution.” While at the FOIA office, Foster “expressed concern about the lack of staffing to do basic ‘FOIA and records functions.’” Foster also said she was prevented from handling FOIA requests submitted to the agency by the Democratic National Committee because a Trump appointee believed her a Democrat.

This is the second instance in as many months of high-level agency officials complaining of being sent to the FOIA office – either because the office is understaffed to the point where it cannot be effective or because agency culture reinforces the idea that FOIA work is a punishment. In January State Department officials joked that being sent to the FOIA office was the professional equivalent of being sent to Siberia.

This is also the second time that news has surfaced of agency officials publicly disparaging the effectiveness of FOIA offices that the Department of Justice’s Office of Information Policy and the Office of Government Information Services, as well as the trade association the American Society of Access Professionals, have not publicly pushed back and affirmed the importance of FOIA offices to agencies as a whole.

POGO data on Trump-era EPA FOIA processing.

Surge in FOIA Lawsuits Against the EPA Continues

The Environmental Protection Agency has been the defendant in 55 FOIA cases since Donald Trump’s inauguration, according to data compiled by the FOIA Project and reviewed by Politico. The suits seek a range of information, everything from EPA head Scott Pruitt’s travel schedules and flying habits to information on reversals of Obama-era policies.

For comparison, “Former President George W. Bush’s EPA — hardly a darling of the environmental movement — faced only 57 FOIA lawsuits during his entire presidency, according to the database’s list of cases.” Eleven FOIA suits were filed during the last year of the Obama administration.

The Project on Government Oversight also found that “The agency has been especially slow to resolve information requests directed specifically at Pruitt’s office.”

Public Outcry Over Washington State’s Regressive Public Records Law

Last week Washington state legislators passed an “emergency” retroactive secrecy law that exempts state lawmakers from the Washington Public Records Act. The legislation comes a year after a court challenge from the Associated Press, the Seattle Times, and others fighting that exact exemption, and would likely “stop the case’s progress.” The bill awaits Gov. Jay Inslee’s decision. The governor’s office has received a record-number of calls and emails about the bill; it is possible that even if Gov. Inslee vetoes the bill, the state legislature would nonetheless override it.

Copy of CIA special intelligence assessment on Pinochet’s role in Letelier and Moffitt assassinations.

TBT Pick – Pinochet Personally Ordered Orlando Letelier Assassination

This week’s #TBT pick is chosen with the recent unveiling of the Orlando Letelier monument in Washington, D.C. in mind. Letelier and Ronni Karpen Moffitt were killed in a 1976 car bombing — an assassination ordered by Chilean dictator Augusto Pinochet. A 2016 Archive posting examines the 1987 CIA special intelligence assessment concluding that Pinochet personally ordered an “act of state terrorism” on the streets of the nation’s capital.

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How the Feds Responded to the Hawaii Missile False Alert, is Kushner’s Office subject to FOIA, and More: FRINFORMSUM 2/22/2018

February 22, 2018

Federal Response to Hawaii Missile False Alert 

Emails released through the FOIA give a detailed look at how the military responded to the false alert – sent by a Hawaii state official unaware that a drill was being conducted – that warned Hawaiians that a ballistic missile attack was imminent. The emails show the false alarm caused “confusion at U.S. military facilities, frustrating senior officers and causing them to question procedures for communicating with state officials.”

U.S. Pacific Command’s Andrew Singer characterized the mood after the alert was issued as follows: “Happened to be in Yoga class when one of the ladies blurted out missile attack and ran out followed by most others. Looking about town most just kept pursing [sic] getting their coffee or Malasadas.”

False missile alarms are not unprecedented. In 2012 the Archive published 20 documents on the “3 A.M. Phone Call” that warned Zbigniew Brzezinski of an incoming nuclear attack that turned out to be a false alarm and other false warnings of Soviet missile attacks delivered to the Pentagon and military commands by computers at NORAD in 1979 and 1980.

Is Kushner Office of American Innovation subject to FOIA?

A FOIA lawsuit filed by Democracy Forward and Food & Water Watch argues that the White House Office of American Innovation – set up by the Trump administration last March to reduce the size of the federal bureaucracy and directed by Trump’s son-in-law, Jared Kushner – should be subject to the Freedom of Information Act. OAI has made the news recently for a “fact-finding mission undertaken by the office in Puerto Rico after Hurricane Maria” that has produced no known findings and approving Elon Musk’s efforts to build a precursor to Musk’s proposed Hyperloop that would transport people between DC and New York in less than half an hour. The complaint argues that “The wide-ranging powers exercised by OAI require it adhere to the Freedom of Information Act requirement that agencies comply with public requests for information. To date, OAI has refused to acknowledge such requests, let alone produce documents in response.”

There are currently six Executive Offices of the President subject to FOIA: the Office of Management and Budget, the Council of Economic Advisers, the Office of National Drug Control Policy, the Council on Environmental Quality, the US Trade Representative, and the Office of Science and Technology Policy.

The White House Office of Administration was subject to FOIA until a 2015 Obama-era rule exempted the office from FOIA.; while the rule was issued during the Obama administration, the office stopped complying with FOIA requests during the Bush administration.

Other EOPs, like the National Security Council, have been found by courts not to be subject to the FOIA.

Democracy Forward also recently filed a FOIA lawsuit against the Justice Department for its failure to respond to FOIA requests for records related to, among other things, the DOJ’s decision to rescind an Obama-era memo to reduce federal reliance on private prisons and Attorney General Jeff Sessions’ memo rescinding the Obama policy in which Sessions claimed that such a move would impair “the Bureau’s ability to meet the future needs of the federal correctional system” and “direct[ed] the Bureau to return to its previous approach.”

Nixon, Thieu, and the Bomb: CIA Report Sheds Light on Richard Nixon’s Madman Diplomacy

The Archive’s Nuclear Project director William Burr and Jeffrey Kimball, an emeritus professor of history at Miami University, recently co-authored an article on the significance of the release of a July 25, 1969, CIA report to Henry Kissinger on remarks made by South Vietnamese President Nguyen Van Thieu. The CIA informant reported that Thieu told members of his political alliance that Nixon was receiving two “extremes of advice” on how to end the Vietnam War – a peace plan and the setting up of a coalition government, or “the dropping of a nuclear bomb on North Vietnam.” The second suggestion raises a number of questions – including from who and when Thieu received this information.

The CIA denied releasing the report in its entirety in response to the Archive’s first request and appeal. It was ultimately released – nearly entirely in full – by the Interagency Security Classification Appeals Panel in response to the Archive’s final appeal – a move that “demonstrates ISCAP’s continuing value for declassifying historically significant information.” Kudos to ISCAP.

Devin Nunes, current HPSCI chair.

The State of Congressional Oversight of the Intelligence Community

The charged partisan debate over the February 2 release by the Republican-controlled House Intelligence Committee of the “Nunes memo” alleging FBI misconduct to obtain a FISA warrant of former Trump adviser Carter Page – and the subsequent vote to release the Democrats’ rebuttal memo that was declined by President Trump – is drawing questions about the effectiveness of the committee’s oversight work.

The National Security Archive’s senior fellow John Prados recently joined NPR’s Morning Edition to talk about the state of the congressional intelligence oversight committees, noting that  “It has been a constant kind of pendulum swing in terms of enforcing oversight.” At times, Prados says, both the Senate and House committees, which were established after the Church and Pike committees respectively, exercised significant influence – including overturning “three successive Clinton nominations to become the head of the CIA” because of objections of the Senate Intelligence Community.

Loch Johnson, an assistant to Sen. Church, told Morning Edition that “there was quite a spirit of bipartisanship” in the both committees in the beginning – a spirit that appears ongoing in the Senate’s investigation into Russian interference in the 2016 election. The Pike Committee, on the other hand – was more contentious and partisan. A recent Politico article from Mieke Eoyang takes a look at how the two committees “were born different,” how these differences have compounded over time, and how this impacts their current effectiveness.

WaPo and the Watergate Story it Missed

In a recent article, Gerrick Alder argues that the Washington Post, despite the laurels it received for its reporting on Watergate and the Pentagon Papers, fumbled Henry Kissinger’s leak that Nixon sabotaged the 1968 Paris peace talks. Alder writes, “Woodward and Bernstein had been handed the skeleton key that would have unlocked the entire Watergate affair. The reporters had been told – by no less a figure than Nixon’s National Security Advisor, Henry Kissinger – about the real motive behind Nixon’s plan to burgle the Brookings Institute. It was to destroy the evidence that Nixon had conspired to prolong a war with an official enemy of the United States in order to win the presidency in 1968; after which he deliberately prolonged – even escalated – the Vietnam War. And – for reasons that might never be known – Woodward and Bernstein stayed silent.”

Nixon and Vice Chairman of the Communist Party of China Zhou Enlai.

TBT Pick – No Support for Taiwan Independence

This week’s #TBT pick is a 2003 posting from the Archive’s China project on how newly declassified documents showed that resident Nixon assured the People’s Republic of China during his historic 1972 trip to Beijing that the U.S. would not support, but could not suppress, the Taiwan independence movement. The documents include:

  • Premier Zhou Enlai’s claim that Washington had let pro-independence politician Peng Meng-min escape from Taiwan, to which Nixon and Kissinger denied that Washington had given any help and assured Zhou that they opposed Taiwanese independence.
  • Nixon’s repeated assurances to Zhou that Washington would discourage any Japanese “military intervention” in South Korea or a Japanese role in Taiwan.
  • Kissinger’s detailed run-down of Soviet forces along China’s borders, including ground forces, tactical aircraft and missiles, strategic air defenses, and strategic missiles, with special attention to nuclear weapons.

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Nixon, Thieu, and the Bomb: CIA Report Sheds Light on Richard Nixon’s Madman Diplomacy

February 20, 2018

By Jeffrey Kimball and William Burr

On July 25, 1969, CIA Director Richard Helms notified Henry Kissinger about a “sensitive” report from an informant regarding remarks South Vietnamese President Nguyen Van Thieu had made three days earlier. Kissinger was then in Manila with President Richard Nixon, who would soon stop in Saigon to meet with Thieu and other Southeast Asian leaders before flying on to Europe. The CIA informant’s news was that Thieu had notified the executive committee members of his political alliance, the National Social Democratic Front, about what he called two “extremes of advice . . . Nixon was receiving” about how to end the Vietnam War. The first was the proposal put forward by the National Liberation Front (NLF) in its May 8, 1969, peace plan for “the setting up of a coalition government.” The second extreme proposal Nixon was hearing called for “the dropping of a nuclear bomb on North Vietnam.”

This report, held in the National Security Council Files at the Richard M. Nixon Presidential Library, had been denied in its entirety by the CIA, first in response to the initial request and subsequently in response to an appeal. A final appeal by the National Security Archive to the Interagency Security Classification Appeals Panel produced a decision to release the document except for a few details on the South Vietnamese source of the information. This recent decision demonstrates ISCAP’s continuing value for declassifying historically significant information.

President Richard M. Nixon meeting South Vietnamese President Nguyen Van Thieu, late July 1969.

The discussion covered in the report refers to one of the core demands of the Hanoi Politburo and the NLF for a coalition government between Thieu and the NLF. (Some in the US antiwar movement had also suggested such a coalition as a compromise diplomatic solution to ending the war.)  But Washington and Saigon had consistently rejected this approach. President Nixon’s most recent diplomatic proposal on May 8, 1969, for example, had sidestepped the issue by vaguely calling for international oversight of South Vietnamese elections, in which, presumably, the NLF could participate. But the US president had also made it clear that Washington would be willing to discuss political issues with Hanoi only if Saigon concurred – which, of course, was not likely. Thieu steadfastly refused to negotiate the fundamental matter of who should hold power.

At his July 22 meeting with the National Social Democratic Front, Thieu was attempting to win support for his new negotiating stance, which now dovetailed with Nixon’s. Earlier, on July 11, and following Nixon’s lead, Thieu had also advocated South Vietnamese elections. Both he and Nixon could now claim that they were on the same page. Elections in the midst of war, however, were problematic, and the proposal was unacceptable to the NLF.

Thieu’s second and more startling announcement – that Nixon was being advised to use a nuclear weapon against the North – raises the question of when and from whom Thieu got this information. In our book, Nixon’s Nuclear Specter: The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War (2015), we documented Nixon’s interest before, during, and after 1969 in making Madman Theory nuclear threats against North Vietnam. We also established that the option for dropping two atomic bombs was included in a mid-September “concept of operations” against the North. Henry Kissinger was a willing and active co-conspirator in this regard. It is possible that Saigon’s representatives in Washington or its intelligence network gleaned information from White House sources about Nixon’s and Kissinger’s pre-September nuclear musings. It is also quite possible that Nixon informed Thieu about the nuclear threat option during their meeting at Midway on June 8, 1969. Kissinger’s brief record of the meeting mentions deadlines, which Nixon and Kissinger used later in the summer to support threats against Hanoi, but he makes no reference to nuclear weapons.

It is also possible, however, that not all of the Nixon-Thieu conversations were written up. According to the White House Daily Diary for that day, Nixon and Thieu had several hours of meetings, including some with advisers. That Thieu had English language skills meant that there was more time for conversations with Nixon on Midway that did not require an interpreter. Whether Kissinger was present at all of these or kept a detailed record of them is unknown.

If Nixon did mention a nuclear weapon option to Thieu at Midway, he probably did it for strategic and political reasons. As a convinced proponent of the Madman Theory, Nixon may have wanted to clue Thieu into the strategy that he believed that Dwight D. Eisenhower had carried out to end the Korean war: by making secret nuclear threats to China. With such a threat, Nixon may also have wanted to ease Thieu’s disappointment on learning that his administration would soon begin withdrawing US troops from Vietnam. While no evidence supports the claims about Eisenhower and the Korean War, Nixon nevertheless assumed that if secret threats had worked for Eisenhower, they were also applicable to the Vietnam situation. Nuclear threats could be used to coerce Hanoi and its Soviet patrons in making concessions at the conference table. Accordingly, in the first months of the administration, Nixon intended to signal the “Soviets about the possibility that we are losing our patience and may get out of control.” If Nixon did say something to Thieu along those lines, it is possible that Thieu interpreted him to mean that the United States might drop a nuclear bomb. Or, Nixon may have told Thieu that dropping a nuclear bomb was an option.

Whatever Nixon said to Thieu might not be lost for all time. Two sources that are presently unavailable may someday shed light on the inner workings of the Nixon administration, including more information on the Nixon-Thieu conversations. First, Nixon kept a diary, which apparently is in the hands of the Richard M. Nixon Foundation. Second, Kissinger also kept a diary (or “office journal”), partly with the assistance of White House staffers. That record is also inaccessible, although the role of official government assistance in compiling it suggests that the Kissinger diary should reside in the National Archives. If those sources ever become available, exactly what Thieu (or his representatives) heard from Nixon or Kissinger may become known.  If Thieu kept a private record of the discussions it has yet to surface.

Jeffrey P. Kimball is emeritus professor of history at Miami University.

Is NARA Rubber-Stamping Potentially Damaging Records Retention Schedules? FRINFORMSUM 2/15/2018

February 15, 2018

NARA OK’s CIA’s Damaging Records Retention Schedule

The CIA could have given a bit more justification to make its case.

The National Archives and Records Administration formally approved a CIA records retention schedule that allows the agency to destroy information that is more than 30 years old – in spite of the warnings from public interest groups and others arguing that permitting the spy agency to delete the records will likely result in the destruction of a large number of potentially important documents.

The CIA’s records retention schedule is troubling enough on its own – it includes potentially allowing the destruction of classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.” It also allows the agency to destroy files related to CIA investigations into alleged unauthorized releases of classified information (which the Agency changed from a permanent to temporary designation). This is a departure from current guidelines, which mandate that leak-related files must be saved permanently. (Amazingly, yesterday the CIA also said “that it has the right to disclose classified information to selected journalists and then to withhold the same information from others under the Freedom of Information Act.”)

But the records schedule – and NARA’s apparent rubber-stamp approval of it – is doubly concerning considering the agency’s own history of destroying important records. Malcolm Byrne, the Archive’s Iran Project Director, pointed to recent reports that the Agency destroyed records on its involvement in the 1953 coup when it moved offices on the incorrect belief that there were copies of the records elsewhere. Byrne argued in July 2017 that, if “CIA disinterest in some quarters about preserving records, human fallibility, and similar horror stories are a guide, then logic dictates there are plenty of grounds for concern – or at a minimum meaningful oversight, which is always a concern in these days of slashed budgets.” The CIA also “mistakenly” destroyed its copy of the 6,700-page Senate Intelligence Committee report on the agency’s torture program, and destroyed 92 video recordings of Abu Zubaydah being waterboarded 83 times in one month in a black prison site back in 2005.

Last year NARA also approved an outrageous request by the Defense Threat Reduction Agency (DTRA) granting the agency unprecedented control over historical reports on nuclear weapons stockpiles. Specifically, DTRA can, thanks to NARA’s approval, retain custody of its reports on the U.S. nuclear weapons stockpile for 80 years or more after they were created – a move that the Archive’s Dr. William Burr described as an “ill-advised action… contrary to the public interest as well as to NARA’s mission and its organizational interests.”

BLM Tries to Limit FOIA Requests, Pretends FOIA Fees Are Recovered by Agencies

The Bureau of Land Management is attempting to simultaneously limit the number of FOIA requests a person or organization can submit and increase the costs of filing a request with the agency so it “can recover all of its direct costs.” The suggestion – which first appeared in a September 27 report – is misleading on a number of levels. It implies that BLM is receiving more FOIA requests than it can handle or has previously processed, but BLM only received 862 FOIA requests in FY2016, well within a normal range for the agency. It also implies that BLM would see any of the money the agency collects from FOIA fees, which it doesn’t now and wouldn’t in the future, because FOIA fees go to the U.S. Treasury’s General Fund, not to cover agency FOIA costs. It’s also worth noting that, thanks to updates to the 2016 FOIA Improvement Act, if an agency misses its 20-day deadline to respond to a request, it cannot, in most situations, collect fees anyway.

Attempting to limit the number of request a person or organization can file is not a new suggestion – it has even been promoted by some members of the open government community – but it’s not the right track to take. The single best way for agencies to get in front of a growing number of FOIA requests is posting more records proactively, and the easiest way to cut down on processing times and save resources is to embrace a presumption of openness and let more documents go with fewer time-consuming and unnecessary reviews.

Scott Pruitt’s Expensive Carbon Footprint

FOIA requests from the Environmental Integrity Project show how much EPA head Scott Pruitt spent on travel – and that much of it was spent on travelling first class, a habit his predecessors largely eschewed. Specifically, FOIA-released documents show that “the taxpayer-funded travel for Pruitt and his top aides during that stretch in early June cost at least $90,000… That figure does not account for the costs of Pruitt’s round-the-clock security detail, which have not been disclosed.” Pruitt also “brings a larger entourage of political advisers” and the “overseas trips are largely untethered to the kind of multilateral environmental summits that dominated his predecessors’ schedules, and Pruitt rarely discloses where he plans to be.” Pruitt cites security concerns as a reason for not releasing more information in advance about his schedule.

President’s Lawyer Has 5 Ongoing FOIA Lawsuits

One of President Trump’s personal lawyers, Jay Sekulow, “has five pending FOIA lawsuits against the Justice Department and State Department. The suits were all filed in 2016 on behalf of the American Center for Law and Justice (ACLJ), an evangelical legal nonprofit where he serves as chief counsel.” Four of the suits are against the State Department – seeking to obtain information on the Clintons – and the other is against the Justice Department – which is described on the ACLJ website as “a crusade against the ‘deep state.’” In one State Department case Sekulow asked the judge to order the department to “cease its impermissible practice of untimely and noncompliant responses to FOIA requests;” Sekulow also argued that State “intentionally understaff[s] its FOIA department.” Mother Jones reports that the judge did not buy Sekulow’s conspiracy claims, saying instead Sekulow “was frustrated like so many journalists by the government’s failure to promptly respond to FOIA requests, but he wasn’t the victim of a conspiracy.”

FOIA Helps Inform GWU ISIS Study

George Washington University’s Program on Extremism has – with the help of a series of FOIA requests – just released an 87- page report that is “the most comprehensive ISIS study ever compiled in an academic setting.” The document, “The Travelers: American Jihadists in Syria and Iraq,” found that “Sixty-four American citizens have traveled to Iraq and Syria since 2011 to join terrorist groups,” that these extremists do not fit a single demographic, but that most were considered “networked travelers” – meaning that they had personal connections to the jihadist group they joined.

Shah Mohammed Reza Pahlavi of Iran and President Dwight D. Eisenhower – all smiles in the early years following the ouster of Prime Minister Mohammad Mosaddeq. (RFE web site)

CIA Declassifies More of “Zendebad, Shah!” – Internal Study of 1953 Iran Coup

A partially-declassified CIA history of the 1953 coup in Iran, released in late 2017, includes an-depth critique of how the agency approached the operation, highlighting the effects of bureaucracy and politics on the conduct of U.S. clandestine activities. The CIA report, recently posted by the Archive, also reveals details about the hatching of the covert plot as well as its execution.

Portions of the history, “Zendebad, Shah!”, have been made public twice before – in 2000 and 2011 – but those versions were identical and provided only the unclassified passages of the roughly 139-page document, withholding the rest on secrecy grounds. Last year, in response to the most recent Mandatory Declassification Review request by the National Security Archive, the CIA conducted another re-review, this time producing considerably more text, although still holding back a substantial amount.

The posting includes side-by-side examples to illustrate some of the differences in releases over the years.

US Role in the Militarization of Mexico’s Drug War

The National Security Archive’s Mexico Project co-director, Kate Doyle, was quoted in a recent Guardian article on the increasing militarization of Mexico’s drug war. One of the main factors cited for the rise in violence – which has killed nearly a quarter of a million people over the last decade and nearly 30,000 last year alone – is the drug cartels’ recruitment of elite Mexican soldiers – roughly as 1,380 – many of whom have been trained by US advisers. Doyle highlights the role of US military aid as a key factor in the escalation in the drug wars, saying “That US military training and intelligence techniques ended up in the wrong hands is far from unusual. Its lethal spillage into the contemporary criminal context is one of the legacies of US security policy in Latin America.”

TBT Pick – CIA Confirms Role in 1953 Iran Coup

This week’s #TBT pick is chosen with the further release of “Zendebad, Shah!” in mind and is a 2013 posting on the CIA’s first official confirmation of its role in the 1953 coup. The explicit reference to the CIA’s role appears in a copy of an internal history, The Battle for Iran, dating from the mid-1970s. More information on the National Security Archive’s Iran-U.S. Relations project can be found here.

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