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Archive, CREW, Historians Sue Pompeo and the State Department over Failure to Create Records, and More: FRINFORMSUM 11/8/2019

November 8, 2019

Archive, CREW, Historians Sue Pompeo, State Department for violating FRA

The National Security Archive, together with Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR), recently sued Secretary of State Mike Pompeo and the Department of State for violating the Federal Records Act by failing to create and preserve essential State Department records. The legal team representing the plaintiffs in the case is led by Anne Weismann and Conor Shaw of CREW, and pro bono counsel George Clarke and Mireille Oldak of Baker McKenzie.

Evidence from the House’s impeachment inquiry, including testimony from Ambassador William Taylor, the chargé d’affaires for Ukraine under the Trump administration, speaks to a pattern and practice of bypassing official record-keeping procedures at the State Department. In discussing a June 28 State-organized phone call with Ukrainian President Zelenskyy, Ambassador Taylor testified that, not only did the Ambassador to the European Union Gordon Sondland exclude most of the regular interagency participants from the call, but that “Ambassador Sondland said that he wanted to make sure no one was transcribing or monitoring as they added President Zelenskyy to the call.” This is a direct violation of the State Department’s obligation under the Federal Records Act to document agency policies, decisions, and essential transactions.

The FRA lawsuit comes on the heels of a related Presidential Records Act case that the Archive, CREW, and SHAFR filed in May 2019 to compel the White House to create and preserve records of the President’s meetings with foreign leaders. The PRA suit was filed after news reports indicated that no such records existed for at least five meetings with Russian President Vladimir Putin, one meeting with North Korean leader Kim Jong Un, and a meeting with Saudi Arabian Prince Mohammad Bin Salman.

Leopold Gets Big Glomar Win

Buzzfeed’s Jason Leopold – represented by Jeffrey Lighthas won a significant legal victory against the CIA’s expansive use of the Glomar exemption. (A “Glomar” response is when an agency refuses to confirm or deny the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.” The pernicious tactic has been adopted by other federal agencies and some state and local entities, including the New York Police Department.)

In July 2017 the Washington Post ran a story about the Trump administration’s termination of a covert CIA program to pay and arm Syrian rebels, a week later the President tweeted that “the Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad,” and several weeks later Leopold filed a FOIA request with the Agency concerning the terminated program. The CIA tried to respond with a Glomar, and Leopold sued. The court ruled in Leopold’s favor, finding that “Because the President’s tweet makes it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of documents that Buzzfeed requested, Buzzfeed has managed to overcome the Agency’s Glomar response and the Agency has failed to meet its burden in this case.”

Buzzfeed FOIA Suits Win Release of FBI’s “302” Reports on Russian Investigation  

A Buzzfeed News reporting team – including Jason Leopold, Zoe Tillman, Ellie Hall, Emma Loop, and Anthony Cormier – has published a trove of material won in response to five separate FOIA lawsuits concerning special counsel Robert Mueller’s investigation of Russian interference in the 2016 election. The documents are the FBI’s 302 reports – summaries of interviews – and include a number of revelations about Paul Manafort, Michael Cohen, and Rick Gates. As Buzzfeed notes, “They reveal what key players in the campaign told FBI agents about Russia, Trump, the email hack during the 2016 presidential campaign, and Trump’s associates’ handling of the special counsel’s investigation.”

The documents, which can be read here, are the first in a series of court-ordered releases and future installments “will be released every month for at least the next eight years.”

Facial Recognition Software Subject of Second FOIA Lawsuit in As Many Weeks

The Project on Government Oversight (POGO) is suing Immigration and Customs Enforcement for its failure to turn over documents on its use of Amazon’s facial recognition software, Rekognition. The Washington Post notes that POGO filed eight separate FOIA requests with ICE between 2018 and 2019 for documents on “ICE’s surveillance capabilities, detention methods and possible civil rights violations,” as well as FOIA requests for information on marketing materials related to Amazon’s pitch or any analysis of the software’s effectiveness. In each instance ICE either ignored the request or responded with a paltry number of documents.

Last week the ACLU filed a FOIA suit against the Justice Department, the Drug Enforcement Administration, and the FBI for documents on their use of facial recognition software. Specifically, “ACLU attorneys asked a federal court in Massachusetts to order the agencies to release documents about how the government uses and audits the software, how officials have communicated with companies that provide the software, and what internal guidelines and safeguards regulate its use.”

NOAA Chastised Forecasters for Contradicting Trump’s Inaccurate Hurricane Dorian Tweet, Despite Knowledge Forecasters were Acting in Response to Public Panic

Emails released through FOIA are shedding light on the National Oceanic and Atmospheric Administration’s (NOAA) decision to publicly rebuke its own weather forecasters in Birmingham, Ala. for contradicting President Trump’s repeated and erroneous claims that Alabama was in danger of being hit by Hurricane Dorian this September. The emails show that NOAA, which is part of the Commerce Department, knew as of Sept. 2 that forecasters at the agency’s National Weather Service office in Alabama were responding to frantic calls from citizens – and not an earlier tweet from President Trump – when it tweeted that “Alabama will NOT see any impacts from #Dorian.” Yet, after five days of the President falsely insisting that Alabama was in danger from the hurricane – including parading a forecasting map that had been altered with a Sharpie –  the NOAA issued an unsigned statement that chided the forecasters for speaking “in absolute terms that were inconsistent with probabilities from the best forecast products available at the time.” The backing of the president at the expense of science and public safety infuriated members of the public and weather researchers alike, and the released emails also show NWS officials trying to boost moral within the administration after the NOAA’s public admonishments.

TBT1979 Iran Hostage Crisis Recalled

On November 4, 1979, a group calling itself the Students Following the Line of the Imam stormed the gates of the U.S. Embassy in Tehran, seized control of the compound, and took several dozen American diplomats, Marine guards, and others hostage. Thus began a 444-day ordeal that shocked the world, fundamentally altered the political scene in Iran, and cemented negative perceptions in the West of the country’s Islamic leadership.

Forty years later, the Iran hostage crisis is still critical to understanding the bitter nature of relations between Iran and the United States.  It instantly formed a core part of the American narrative about the Islamic Republic as a regime willing to flout international law and universal moral principles, a view that has colored much of U.S. policymaking ever since.

This week, the National Security Archive posted a small sampling of declassified records that recall that pivotal episode. They include a memo from National Security Advisor Zbigniew Brzezinski to President Carter suggesting several hardline actions including replacing Ayatollah Ruhollah Khomeini as Iran’s leader and even overt intervention (see Document 07).  Carter was not prepared to take up any of these options but they indicate the level of alarm created by events in Tehran.

The documents are part of the soon-to-be-published U.S. Policy toward Iran: From the Revolution to the JCPOA, 1978-2015, a collection of almost 2,000 documents that is the latest in the “Digital National Security Archive” series through the academic publisher ProQuest.

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EPA Tries to Blame Bad FOIA Regs on Advisory Committee Recommendation: FRINFORMSUM 11/1/2019

November 1, 2019

Finding agency FOIA regulations can be a difficult task.

EPA Tries to Blame Bad FOIA Regulations on Advisory Committee

The Environmental Protection Agency is trying to blame a recommendation from the FOIA Federal Advisory Committee for its controversial new FOIA regulations, which centralizes the agency’s FOIA submission process within the EPA’s headquarters’ office in D.C. and away from the agency’s regional offices. The new rule, issued in June, allows the administrator and other officials “to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide ‘whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” It seems likely that the rule will expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allow the agency to functionally ignore any requests sent to regional offices.

In an Oct. 23 response to Rep. Katie Porter’s (D-CA.) July 9 letter, the EPA’s acting associate administrator Joseph Brazauskas says the move was in keeping with recommendations from the FOIA Federal Advisory Committee to centralize FOIA processing where appropriate. Rep. Porter didn’t buy the misreading of the FOIA Advisory Committee’s good recommendation. She noted that the EPA’s FOIA processing remains decentralized, while it’s the FOIA submissions policy that has changed. She says, “Centralized FOIA processing, when done properly, allows for one official to search and review records even when held by various offices, thereby eliminating substantial waiting time and duplication of efforts.” Porter further pointed out that “Centralized submissions with continued decentralized processing instead increases delays as FOIA requests are routed to the appropriate office or branch.”

Rep. Porter also argued that the EPA violated federal procedures (the Administrative Procedures Act) by changing its FOIA policy without offering notice and a public comment option, and requested the EPA provide documentations of its legal justifications for doing so. The Project on Government Oversight’s Sean Moulton has an excellent, in-depth analysis of the EPA’s lack of public comment here.

The EPA faced immediate backlash for the rule when it was published in the Federal Register in June. Long-time FOIA champion Senator Chuck Grassley tweeted, “Americans deserve 2kno what their govt is up to Freedom of Information Act designed to promote transparency when govt lacks openness but recent SCOTUS ruling+EPA &Interior regs undermine FOIA I will write legislation 2fix TRANSPARENCY BRINGS ACCOUNTABILITY.” Senator Patrick Leahy added, “Congress won’t sit idly by while @EPA further guts FOIA w. an offensive rule allowing politicals to reject #FOIA requests w/o explanation. @EPAAWheeler: a friendly reminder that #Appropriations has oversight responsibilities. We’ll be chatting about this.” Sens. Grassley and Leahy, along with Sen. John Cornyn and Sen. Dianne Feinstein, introduced a bill, the Open and Responsive Government Act of 2019,  in direct response to the EPA’s rule that “directly eliminates any agency’s authority to withhold any public documents under a basis of non-responsiveness.”

NARA Investigates Wilbur Ross’ Use of Private Email

Politico’s Josh Gerstein reports that the National Archives and Records Administration is investigating Commerce Secretary Wilbur Ross’ use of private email for government business. Ross’ use of private email was revealed in a FOIA lawsuit filed by Democracy Forward, and the FOIA-released documents show that, “From a nongovernment account, Ross has sent or received official correspondence about discussions with the European Commission for Trade, a U.S. ambassador’s meeting with German car manufacturers, a dinner featuring the ambassador of Japan, what appears to be an event related to billionaire businessman Bill Koch, and meeting requests from the far-right Internet troll Charles Johnson.”

NARA’s Laurence Brewer wrote in an October 9 letter to the Commerce Department’s chief information officer that, “The National Archives and Records Administration (NARA) has become aware of a potential unauthorized disposition of U.S. Department of Commerce records… In accordance with 36 CFR 1230.16(b), NARA requests that the Department respond within 30 calendar days to the allegation.”

Ross joins at least eight other current and former Trump administration officials who have been reported to use their personal emails for official business, including Ivanka Trump and Jared Kushner, adviser Steven Miller, former adviser Steve Bannon, former deputy national security adviser K.T. McFarland, as well as former chief of staff Reince Priebus and former National Economic Council director Gary Cohn.

ACLU Files FOIA Suit over Facial Recognition Info

The ACLU recently filed a FOIA suit against the Justice Department, the Drug Enforcement Administration, and the FBI for documents on their use of facial recognition software. Specifically, “ACLU attorneys asked a federal court in Massachusetts to order the agencies to release documents about how the government uses and audits the software, how officials have communicated with companies that provide the software, and what internal guidelines and safeguards regulate its use.” The ACLU filed its FOIA requests with the defendants in January, but received no response.  In its press release regarding the suit, the ACLU’s Kade Crockford cites the FBI’s Facial Analysis, Comparison, and Evaluation (FACE) unit, which searches 641 million facial photos, including those from driver’s license databases.

Nuclear Weapons and Turkey Since 1959

The current crisis with Turkey over Syria has raised questions, yet to be resolved, about the security of 50 U.S. nuclear weapons stored at Incirlik Air Base. These questions have been posed before, going back almost to the start of nuclear deployments in Turkey in 1959. How the United States responds carries implications for the region, for U.S.-Turkey relations, and for NATO. The National Security Archive recently posted a selection of declassified documents from various sources, including the Digital National Security Archive, in order to provide historical context to the situation.

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War Stories and Advice from the Archive’s Outgoing FOIA Director

October 18, 2019

A result of an early FOIA request. The National Security Agency classified a wikipedia article, reviewed it, and charged me before processing it for release. I’ve had more success since.

A few war stories and bits of advice before I leave my job as Director of the FOIA Project at the National Security Archive to begin a new role as the FOIA Director for the Washington Post:

If the Reagan Presidential Library had just given me the darn document, I wouldn’t have helped file tens of thousands more FOIAs over the past ten years.  When I was a college student writing my thesis on the 1983 Able Archer War Scare, I used some of my Christmas money to travel to the Reagan Presidential Library to do research.  I found some interesting documents there, to be sure, but most of the folders that had titles relevant to my research had no documents inside, just lists of “closed” files.  I, disappointed, sheepishly asked an archivist if there was anything, I could do to see these files.  He said, with a half-annoyed and half-pitying look, “I guess file a FOIA[1] and wait.”

As it turned out, this was one of the best things that could have happened to me.  Instead of becoming dejected, I became angry.  I researched the Freedom of Information Act, including how to fight delays and denials and came across guidance from the National Security Archive.  Even more importantly, I was blown away by just how awesome the National Security Archive was!  How cool would it be to work here!?

Eventually, after a few tries, I was hired as an intern (I cornered the previous FOIA director at a party until she agreed to accept my resume.  How DeeCee).  I started by scanning declassified documents into our system as they came in.  Before too long, I climbed the ladder to work for luminaries Jeff Richelson and Matthew Aid. And then, in a few years, I was overseeing the entire FOIA project and was Editor of the Archive’s blog Unredacted where I had the pleasure of producing a good run of “Document Fridays” (One of which, recently updated, about State Department reporting on the kidnapping of then-Washington National Wilson Ramos).  I FOIAed, won the release of, and wrote up lots of documents.  All my writing was helped by two of the best editors imaginable, Tom Blanton and Malcolm Byrne; it’s a real treat to write with them.  Off the top of my head, a few of my favorites include:

District of D.C. Judge Gladys Kessler reveals hos she really feels about the CIA

The True Spy Story of Argo

The Zero Dark Thirty File

The Rumsfeld Snowflakes

And The Dissent Channel

Oh yeah, also that time the CIA paid the National Security Archive a settlement $350,000 for violating FOIA and we got the internal dox about their anger at doing so!

But we didn’t just win historical revelations.  We also affected current policy.  I helped author eleven FOIA Audits. Largely due to my colleague Lauren Harper’s excellent FRINFORMSUMs (Freedom of Information Summaries—a nod to less open intelligence reports), Unredacted became a very important news source for all Open Government and FOIA news.  A few of our pieces even had an impact on improving FOIA and ultimately helping to get a pretty good FOIA Improvement Act Passed.  I’m most proud of:

Candid remarks on Exemption 5.

The Next FOIA Fight: The B(5) “Withhold It Because You Want To” Exemption

What We Can Learn from the Death of an Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government

Against Transparency?

FOIA: A Colossus Under Assault and

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

A FOIA request to the National Parks Service revealed the president of the United States lied about his crowd size.

And, speaking of the FOIA Improvement Act, I’d like to pay an homage to the late great Chairman Elijah Cummings.  In my first testimony to Congress, I made some good points, but, probably hotheadedly, bemoaned that Congress was not doing enough to fix FOIA faster.  He gave me a tongue lashing, overviewing the power of FOIA telling me, “not to throw the baby out with the bathwater.”  It’s an admonition I’ll be forever proud to carry.

And what about those 1983 War Scare FOIAs?  Well, National Security Archive won the release of the key, chilling document, a 100-page comprehensive President’s Foreign Intelligence Advisory Board report that concluded the danger was real in 2015.  The release came after a twelve-year fight involving FOIA, MDR, and the Interagency Security Classification Appeals Panel.  And—proving the FOIA gods have a sense of humor—was released to me on my birthday.  Eventually, this and other War Scare

Happy Birthday!

documents became a book.  And the Able Archer 83 Sourcebook remains the most comprehensive resource of declassified American, Soviet, and Warsaw Pact dox to this day.

As a fellow at the National Security Archive, I’ll continue to research this topic and fight for the release of still-secret sources, including General Perroots’s firsthand warning of the danger he experienced during the nuclear exercise and the Initial British reporting, entitled ”The Detection of Soviet Preparations for War Against NATO.”

Finally, as I leave the best job I’ve ever had to become the Washington Post’s FOIA Director, I’d like to give a bit of final advice to the FOIA warriors out there (in addition to my maxim: “ALWAYS APPEAL.” –see more general filing tips here at ever-awesome Muckrock).

A send off as only the NS Archive could do.

First, get to know your counterparts within the government.  Some of the most rewarding experiences I’ve had were swapping stories with FOIA processors at the American Society of Access Professionals, doing deep dives into records policy with the staff of the US National Archives and Records Administration, and serving with governmental and nongovernmental experts on the Federal FOIA Advisory Committee.  My largest take away from my colleagues within the system is that most absolutely believe in open government and want to get the records out.  The problem, as they see it, is lack of resources.  I completely agree with them!  But I also point to another problem, that I think some of my government colleagues have begun to come around to: the extreme inefficiencies within the FOIA processing system.  Yes, fund FOIA better!  But the more actionable solution, I believe, is confronting the multitude of FOIA processing inefficiencies and remedying them.  Two of my favorite solutions that the FOIA Advisory Committee recommended to do this are to update the FOIA fee regs (written before the advent of email)[2], and for agencies to fix the largest reason for FOIA delays, inefficient searches.

Opportunity Lost.

Second, those who want to see FOIA improved should apply as much pressure as possible on the Department of Justice Office of Information Policy to do so.  It has more capacity and authority than any other agency.  But, as the Archive has written, the two-time Rosemary Award winner, has not lived up to its tasking.  The greatest disappointment in my tenure at the National Security Archive was watching President Obama’s day one directive to improve FOIA practices, and his directive for every agency to cut its FOIA backlogs by ten percent each year be ignored by the Department of Justice Office of Information Policy, and in turn, the FOIA shops throughout government.  Imagine what a great position we would be in if agencies had completed the President’s crystal clear, manageable instruction to reduce their backlogs by ten percent for eight years in a row.  It’s a sad missed opportunity to think about.  In retrospect, President Obama’s greatest FOIA failing was not ensuring the Department of Justice Office of Information Policy followed his marching orders to improve FOIA.  Hopefully, this error is a teachable moment that a future administration that also cares about improving FOIA will not repeat.

Finally, I’d recommend FOIA advocates not tinker around the edges as they work to reform FOIA.  I think they should ask themselves: Does any proposed reform get more information to more people more quickly?  If so, it is a worthy reform to fight for! If not, it may not be.  The first worthy reform I’d recommend getting passed is the bipartisan FOIA-lion-approved quick fix to return to the status quo balancing test after the Supreme Court’s Exemption Four overstep. (The Court cares about the “plain text meaning” of the word “harm” in the business-protecting Exemption Four, but not about the words “shall make the records promptly available” in the statute?!?!)  Another larger fight I’d recommend is the inclusion of a provision allowing FOIA personnel access to agency electronic records so that they can search them in response to FOIAs, rather than waiting for their busy colleagues to take years, or decades.  And a final, next frontier fight is a universal public interest balancing test, as was introduced in Senator Warren’s Anti-Corruption and Public Integrity Act.  Despite the order, still on the books, that they should not withhold information because they merely technically “may do so legally,” agencies are still largely withholding anything and everything they can (among watermelon production data and other stupid secrecy).  The next step is enshrining in legislation the public’s right to some information, even if it technically falls under one of FOIA’s exemptions.  I know that these battles will be fought by zealous right to information warriors.

As I told my esteemed colleagues at National Security Archive, this is a see you soon, not a good bye.  I’ll remain a research fellow here, and will be knee and elbow deep in FOIA at the Washington Post.

So….  See.  You.  Later.

 

[1] Most Presidential Library records are released via Mandatory Declassification Review (one of my very first blog posts!!), not the Freedom of Information Act.

[2] Cause of Action has just filed a lawsuit fighting to do just this!

ISOO’s FY 2018 Classification Report Continues to Warn of Outdated System, but Lacks Key, Previously-Reported Data: FRINFORMSUM 10/17/2019

October 17, 2019

ISOO’s FY2018 Classification Report to the President  

The Information Security Oversight Office’s 2018 Report to the President is now online – but contains considerably less information than previous years. The gist of the report, which is currently our best tool for analyzing the classification system in the United States, remains the same as last year; namely that the current classification system is “unsustainable, and desperately requires modernization. The investment, adoption, and use of advanced technologies lie at the core of this transformation, but we also need new policies and practices that reflect and support the way the Government actually operates in the 21st century.”

The FY 2018 report, which is only 12 pages long (compared to last year’s 69-page report), notes that:

  • In FY2018 the Interagency Security Classification Appeals Panel (ISCAP) decided 37 mandatory declassification review appeals and one classification challenge.” The report does not specify how may MDR appeals the panel received (although a little digging puts the number around 680) or how many times ISCAP overruled agency classification decisions.
    • As a comparison, in FY2017 ISOO reported ISCAP received 577 appeals, an 80% increase from FY 2016, and decided on 50, declassifying 58% of the documents in full and declassifying 35% in part. This important statistic showed ISCAP only affirmed agency classification decisions in full 7% of the time.
  • ISCAP has a backlog of 1,217 appeals.
  • Original classification authorities decreased from FY2017, continuing last year’s trend. However, there were no metrics on original classification decisions, which have been increasing despite the reduction in original classification authorities.

The kind of statistical data available in previous reporting but missing from this year’s report includes:

  • Security classification costs.
    • Last fiscal year the government spent $18.39 billion on security classification, a $1.5 billion increase from FY2016.
  • Formal Classification Challenges for FY 2018.
    • Last FY there were a total of 721, a decrease of 24% from FY2016.
  • The total page count for declassification review for FY2018.
    • In FY2017 ISOO reported “The total page count for declassification review decreased under automatic, systematic, and discretionary declassification programs by 18%” and noted agencies were “unable to meet the demands of electronic records review.”
    • Specifically, for FY2017 there were 83,765,475 pages reviewed for programmatic declassification, of which 55% were declassified.
    • There were 693,652 pages reviewed for systematic declassification, of which only 35% were declassified.
    • In FY2017, 57,539 pages were reviewed for discretionary declassification review, of which only 38% were declassified.
  • Mandatory Declassification Review data.
    • The government received 6,540 MDR requests and 635 appeals in FY2017.

ISOO director Mark Bradley acknowledges the considerable difference between this year’s and previous years’ reporting. He cites the challenges in collecting and analyzing agency statistical data, and hints that there will be improved processes and metrics in the future.

Bipartisan Declassification Reform Legislation  

Senators Ron Wyden (D-OR) and Jerry Moran (R-KS) recently announced plans to introduce a bill to address declassification reform. Sen. Wyden said that agencies are drowning in classified records and the problem is only getting worse, going on to note that “Many of these records are no longer truly sensitive, so classifying them only creates huge costs for taxpayers without doing a thing to protect national security.” Sen. Moran said “Classified documents that do not impact our national security and no longer need to be protected are a waste of government resources and taxpayer dollars. The current system of maintaining these classified records is outdated and ineffective. This sensible legislation that we plan to introduce would modernize the system to reduce the backlog in processing classified information, cut down on government expense, increase accountability and make the work of our federal agencies more efficient.”

Rep. Cummings receiving his 2019 Sunshine in Government Award.

Mourning the Loss of Rep. Elijah Cummings

Representative Elijah Cummings (D-MD) has died at the age of 68. He was a long-time champion of the Freedom of Information Act and open government, and was a hero to the National Security Archive and many others. Mr. Cummings was the recipient of the 2019 Sunshine in Government Award, and a video of his acceptance speech can be found here. During the speech he told the audience, “I beg you to tear down any walls that might block you from getting info to the American people that they need to know. Stand up for strong FOIA law. Work with us. Don’t be silent. I want our grandchildren to know that we stood up for this democracy. That we, all of us, had great respect for the people who created the Constitution. That we decided to be about freedom of the press & getting the information out. We are at a critical moment in our country’s history. I am so glad that you have been called to this moment to be the guardians of our information and the flow of our information.” (Thank you to Alex Howard for highlighting this passage.)

NY FOIA Request Wins Release of Trump Tax Documents

ProPublica used the New York Freedom of Information law to “show stark differences in how Donald Trump’s businesses reported some expenses, profits and occupancy figures for two Manhattan buildings, giving a lender different figures than they provided to New York City tax authorities.” The documents were responsive under the FOI law because President Trump “appealed his property tax bill for the buildings every year for nine years in a row, the extent of the available records.” ProPublica sleuths then compared the tax records with loan records that became public when Trump’s lender sold the debt.

TBT – The Cuban Missile Crisis at 57

This week’s #TBT pick is chosen with the 57th anniversary of the Cuban Missile Crisis in mind. This 2017 posting from Archive analysts Dr. Bill Burr and Peter Kornbluh uses declassified documents, including the “Military Government Proclamation No.1”, to show how the U.S. military drew up plans to occupy Cuba and establish a temporary government headed by a U.S. “commander and military governor” during the 1962 missile crisis. “All persons in the occupied territory will obey immediately and without question all enactments and orders of the military government,” stated the proclamation. “Resistance of the United States Armed Forces will be forcefully stamped out. Serious offenders will be dealt with severely,” it warned. “So long as you remain peaceable and comply with my orders, you will be subjected to no greater interference than may be required by military exigencies.”

Read the rest at the National Security Archive.

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The Wilson Ramos Kidnapping Declassified –AND FULLY UNREDACTED

September 27, 2019
Image by Lauren Harper.

Image by Lauren Harper.

 

UPDATED BELOW WITH FULLY DECLASSIFIED DOCUMENT

The Department of State has declassified a cable on the November 9, 2011 kidnapping and November 12 rescue of Washington Nationals star catcher Wilson Ramos in response to a National Security Archive Freedom of Information Act request.  According to the previously “Secret/NOFORN” cable composed by the US Embassy in Caracas, Ramos’s rescue “was the result of good police work” by Venezuela’s Corps of Scientific, Penal and Criminal Investigative Corps (CICPC).

"Free Wilson" signs left at Nationals Park on November 11, 2011. Courtesy SB Nation.

“Free Wilson” signs left at Nationals Park on November 11, 2011. Courtesy SB Nation.

On the evening of November 9th, Ramos was kidnapped at gunpoint from his mother’s home in the city of Valencia, near the Caribbean coast.  According to Ramos’s account, the gunmen threw him into the back of a Chevorlet Captiva and covered his face with a black t-shirt.  They drove to a mountainous region near the town of Montalban in central Venezuala.  There, they did not physically harm Ramos, attempted to feed him (arepas with sardines), and told him that they “were going to ask for a ton of cash for [him].”

According to the Department of State cable, the CICPC “already had the abductors under investigation prior to Ramos’s kidnapping because the group had kidnapped other individuals in the same area of Valencia.”  The State Department also reported that the CICPC used “source information and wiretaps” to immediately “identify the individuals responsible and and the location where Ramos was being held.” This information allowed CICPC to “act quickly and immediately” and begin planning its rescue mission.  State reports that approximately 300 CICPC officials worked on the case.  Hugo Chavez, himself, had repeatedly called the CICPC director demanding updates, and personally authorized the search and rescue mission.

After 50 hours in captivity, Venezuelan commandos raided the building he was being held and exchanged gunfire with his captors for –according to Ramos– as long as fifteen minutes.  Finally Ramos was rescued, and was returned at 3:0o AM to a celebrating crowd at his mother’s house in Valencia.

Ramos, at CICPC headquarters in Valencia on November 12, 2011. Courtesy, Associated Press.

Ramos, at CICPC headquarters in Valencia on November 12, 2011. Courtesy, Associated Press.

“Thank God, I’m alive and here at home…I thank you for everything. I don’t have words to express all that I feel, and how thankful I am for all your help.  Thank you, for real.  I really love you,” Ramos told the crowd.

According to the State Department cable, based on US Embassy contacts with Venezuelan law enforcement and media reports, “The kidnapping ring responsible for Ramos’s abduction does not appear to have been highly sophisticated.  The kidnappers may have believed Ramos would be an easy target and perhaps underestimated the international media attention” his kidnapping would generate.

The embassy was correct.  Ramos –who hit .267 with 15 home runs in 2011–  was a beloved member of the Washington Nationals, and fans throughout the Washington, DC area, United States, and world closely watched for any updates on his plight.  Distraught National Fans held a vigil at Nationals Park.  It is likely the outpouring of Nationals and American, Venezuelan, and international baseball fans contributed to the catcher’s release.  He remains a highly-productive and much loved player on the Washington Nationals.

Washington Nationals fans gather for a vigil at Nationals Park on xxxx. Courtesy SB Nation.

Washington Nationals fans gather for a vigil at Nationals Park on November 11, 2011. Courtesy SB Nation.

But the State Department cable does not close the case on Wilson Ramos’s kidnapping.  After his return, questions began to emerge about the exact nature of the crime.  A February 2012 Sports Illustrated article  raised the possibility that Ramos may have been kidnapped because “he chased the wrong woman.”  The same article also speculated that Detroit Tigers star Miguel Cabrera secretly paid the ransom to bring Ramos home.  Finally, Sports Illustrated posited that to save face, the Venezuelan authorities may have arrested six people with no actual relation to the kidnapping.

Ramos and his bobblehead, which was release by the Nationals during the 2014 season, three years after his kidnapping and release.

Ramos and his bobblehead, which was release by the Nationals during the 2014 season, three years after his kidnapping and release.

The declassified cable, written before the Sports Illustrated article was published, does not answer any of these theories.  It does, however offer an additional one: that the FARC, a Colombian guerrilla movement, may have been behind the kidnapping.  The cable reports that “in his public statements Ramos claimed that two abductors spoke with Colombia accents and spoke of a ‘la guerilla.'”

The cable also raises more questions.  After its speculation on the FARC, a substantial section of the cable has been redacted on claimed “national security” grounds , leaving the public to wonder which aspect of the Wilson Ramos kidnapping still remains hidden.

Of course, the National Security Archive has appealed this redaction.

9/27/2019 UPDATE: And we won!  Below is a side-by-side of the original redactions and the fully-released version provided by State after we appealed.  The new version shows that the original redacts hid that State had Venezuelan law enforcement contacts, and that those contacts had “received no evidence to corroborate a FARC connection.”  State’s Venezuelan law enforcement Sources also reported that they believed the “shoot out” was actually a Corps of Scientific, Penal and Criminal Investigative Corps (CICPC) “diversion to disorient the abductors during the raid.”

This release is yet another reminder why requesters should ALWAYS APPEAL. 

comparison

The original, redacted release is on the left, the unredacted release, obtained after a FOIA appeal, is on the right.  

xxxx

“Good police work leads to release of Washington Nationals catcher Wilson Ramos”

State Dept.’s Annual Historical Advisory Committee Report Slams DOD’s FRUS Performance – Again. FRINFORMSUM 9/26/2019

September 26, 2019

State Dept. Calls DOD’s FRUS Efforts Negligent and Egregious

For the second year in a row, the State Department’s Historical Advisory Committee (HAC) takes the Defense Department to task for its poor performance regarding its obligation to declassify select documents for the Foreign Relations of the United States series. In its annual report for 2018, the HAC says “once again the Department of Defense in 2018 performed so negligently and so egregiously violated the requirements mandated by the Foreign Relations statute that it more than offset the commendable efforts of the other agencies and departments.” (emphasis added) The HAC also cited the State Department’s 2017 rejection of the Office of the Historian’s request to renew three HAC members as a hindrance to the FRUS’s publication.

The FRUS series is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.” Steve Aftergood notes that, “To a large extent, FRUS is dependent on — and also helps to motivate — declassification of national security and foreign policy records. Such declassification in turn depends on the cooperation of other agencies who are called upon to review selected documents.”

HAC also expressed concerns about the National Archives and Records Administrations and the State Department’s Office of Information Programs and Services ability to manage the growing volume of electronic records, and warns that “insufficient funding, the lack of an appropriate secure space, and inadequate technology has incapacitated IPS’s reviews of central file P- and N-reels from the 1980 on, the quality of which is rapidly deteriorating.”

There were successes, however. The office published six FRUS publications (down from eight last year). These volumes are:

  1. FRUS, 1969–1976, Volume XIX, Part 2, Japan, 1969–1972
  2. FRUS, 1917–1972, Volume VIII, Public Diplomacy, 1969–1972
  3. FRUS, 1977–1980, Volume XVII, Part 2, Sub-Saharan Africa
  4. FRUS, 1917–1972, Volume VII, Public Diplomacy, 1964–1968
  5. FRUS, 1977–1980, Volume XXIV, South America; Latin America Region
  6. FRUS, 1977–1980, Volume XII, Afghanistan

The Historian’s Office also “completed its 10-year project to digitize and post online at history.state.gov all 512 back catalogue FRUS volumes dating back to the series’ origin in 1861. Each volume is fully-searchable and downloadable in multiple formats. Notwithstanding the difficulties, OH now plans to digitize all the microfiche supplements.”

The report praises the leadership of the IPS and the National Security Council’s Office of Access Management, as well as the Department of Energy, which improved its review despite the onerous page-by-page Kyl-Lott review requirements of documents for Restricted and Formerly Restricted Data, the “guidelines for which are ambiguous.” The report also notes that in 2018 the CIA did demonstrate its commitment towards its FRUS obligations, though expressed concern that the CIA’s Historical Review Panel did not convene a meeting in 2018, despite meeting twice annually in previous years.

New Info on the FBI’s Use of National Security Letters 

A FOIA lawsuit has won the release of FBI documents showing that the bureau has used National Security Letters to “obtain personal data from far more companies than previously disclosed.” The newly-released documents are letters terminating the gag orders that accompany national security letters (NSLs demand business records from a wide array of organizations for national security investigation and have been a long-standing concern for privacy advocates in part because of their insufficient judicial oversight and draconian nondisclosure agreements). The FBI tried to argue in court that even releasing the termination letters for the gag orders “could allow criminals and terrorists to learn sensitive information about the FBI’s investigative techniques.” But Judge Vince Chhabria of the Northern District of California found the FBI’s argument “dubious” and ruled in favor of the Electronic Frontier Foundation, which shared the documents with the New York Times.

JTF-Ares: Hacking ISIS

NPR’s Dina Temple-Raston’s “How the U.S. Hacked ISIS” is adding more information to the public record on Joint Task Force ARES and Operation Glowing Symphony, the U.S. Cyber Command’s attempts to curtail ISIS’s ability to use and exploit the internet. The piece relies on interviews with half a dozen people directly involved in the operation, and is an invaluable companion read to the National Security Archive Cyber Vault’s collection of FOIA-released records on JTF-ARES and Glowing Symphony, which shows the evolution of the US approach and “allows for at least a partial, preliminary judgment about the operation’s success.”

Are you a researcher interested in journalism and cybersecurity? If so, join us for a FOIA workshop specially curtailed for you on October 24.

Private Firms Profiting From ICE Detention Centers

FOIA records obtained by the National Immigrant Justice Center provide a “rare glimpse into dealings between private detention companies and government officials.” The documents include emails between senior officials at the for-profit Immigration Centers of America and the town treasurer of Farmville, Virginia, where ICA has a facility. Emailed invoices show that ICA charged Farmville around $2 million a month, of which the town of Farmville netted around $200,000 in profit. Jesse Franzblau, a senior policy analyst at NIJC, told Roll Call that “Taken altogether, the paper trail really shows this profit-driven incentivization for mass incarceration of immigrants.”

Letelier-Moffitt Assassination: State Department Officials Pushed for Pinochet’s Ouster

In the aftermath of the September 21, 1976, car-bombing that killed former Chilean ambassador Orlando Letelier and his colleague, Ronni Moffitt, in Washington D.C., four State Department officers began pressing for a policy to force General Augusto Pinochet from power, according to a declassified “Dissent Channel” memorandum recently published by the National Security Archive. “It is probable that President Pinochet ordered the assassination of Letelier and others,” the authors wrote in their appeal for an aggressive policy of ending normal relations with Chile until Pinochet was removed.  “Our only hope for justice is for the U.S. to take action that will bring it about.”

The Archive obtained the Dissent Channel memo through a lawsuit. Read the rest of the story here.

The Vela Flash: Forty Years Ago

An unidentified flash on 22 September 1979 in the far South Atlantic had a “90% plus” probability of being a nuclear test, according to a CIA finding from later that year. The document, among others uncovered recently through archival research, adds significant weight to the argument that the flash, detected by a U.S. VELA satellite, was not a natural event, as White House science advisers later insisted.

On the fortieth anniversary of the Vela incident, the National Security Archive supplements its earlier postings with documents recently obtained from the Jimmy Carter Library.  The collection includes new information on scientific intelligence provided by the Arecibo Observatory (Puerto Rico) concerning an ionospheric disturbance on 22 September that corresponded to similar evidence from Soviet nuclear tests in the early 1960s.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

TBT pick – As DOJ OIP’s Pustay Retires, We Highlight Just a Few of the Times Congress Faulted Her Agency’s Role Overseeing FOIA

This week’s #TBT pick is chosen with Buzzfeed News’ Jason Leopold’s successful FOIA request for documents on the retirement on the Department of Justice’s Office of Information Policy director, Melanie Pustay, in mind. The documents show that Pustay, who lead the department for 12 years, is leaving the office on October 3. Pustay lead the department for 12 years – to poor reviews from Congress and the open government community. In 2015 during the House Committee on Government Oversight and Reform’s hearing on FOIA, then chair Jason Chaffetz (R-Utah) told Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented,  and Senator Chuck Grassley told her during a 2018 hearing that her explanations for why the “release to one, release to all policy” had yet to be finalized (it still hasn’t) didn’t pass the “common-sense test.”

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Five Years Later, the Search Continues

September 26, 2019

Activists at a Global Action for Ayotzinapa demonstration in Oaxaca, Mexico. Credit: Montecruz Foto

By Megan DeTura

Today marks the fifth anniversary of the forced disappearances of 43 students from Ayotzinapa, Guerrero. In a case that has become a rallying cry throughout Mexico and the broader human rights community, the search for answers and justice continues as the fallout from a deeply inadequate government response intensifies.

In the immediate aftermath of the attack on the students, then President Enrique Peña Nieto launched an investigation that has since been sharply criticized by politicians, citizens, and most notably the Interdisciplinary Group of Independent Experts (or GIEI, by its Spanish acronym). GIEI’s two reports (issued in September 2015 and April 2016) indicated systemic delays and manipulation of evidence by government authorities, including their failure to follow up on suggested areas of investigation.

Since taking office on December 1, 2018, President Andrés Manuel López Obrador has taken a radically different stance toward the case from his predecessor. López Obrador, or AMLO as he is known, has prioritized uncovering the truth behind the 2014 case, taking steps to establish a truth commission led by Interior Deputy Secretary of Human Rights, Alejandro Encinas Rodríguez. The commission was inaugurated two days into AMLO’s administration and has since signed an agreement with the Office of the United Nations High Commissioner for Human Rights, which will reinforce its efforts via guidance and technical assistance. The UN OHCHR Statement may be found here.

The administration also launched a new criminal investigation, creating a special prosecutor’s office that will work to both correct irregularities and investigate the previous government’s mishandling of the case (link to Comunicado FGR 313/19). Led by special prosecutor Omar Gómez Trejo – a staff member and chief investigator for GIEI from 2015 to 2016 – , the office will work in conjunction with the truth commission in its quest for answers and accountability.

While such efforts have begun to provide a modicum of hope for the families of the 43 students, the consequences of the flawed investigation by the Peña Nieto administration continue to emerge. Just this month, a primary suspect in the case and a senior member of the drug cartel Guerreros Unidos – Gilardo López Astudillo or “El Gil” – was released after a judge found 62 of the 107 pieces of evidence submitted by the Mexican Attorney General’s Office inadmissible. More suspects have subsequently been freed on similar grounds, with the authorities’ use of torture and fabrication of evidence during the prior investigation resulting in the disqualification of 77 out of 142 individuals’ cases. Included in the releases were two dozen local police officers arrested for alleged participation in the attacks.

Now more than ever, the United States role in this investigation cannot be overlooked. As the National Security Archive’s previous post highlights, the U.S. government maintains pivotal records regarding members of the criminal gang Guerreros Unidos (United Warriors), who operated a drug distribution ring in Chicago. This same gang was heavily implicated in the disappearance of the 43, with Guerreros Unidos members in Iguala—together with local police—held responsible for the violent attacks on the students late at night on September 26 and into the early morning of September 27, 2014.

To date, all but two of the National Security Archive’s 102 Freedom of Information Act requests regarding the Ayotzinapa case have been denied or remain unanswered, further limiting the window for justice and fight against impunity. These requests date back to 2017. Given the fact that the DEA transcripts were among the few pieces of evidence not considered inadmissible in the case against “El Gil,” such evidence has become increasingly crucial.

As Mexican investigators delve into Ayotzinapa once more, this time on behalf of an administration that appears to be committed to solving the case, the US government has a fresh opportunity to assist in the effort. Whether by declassifying documents or providing information about Guerreros Unidos directly to Mexican investigators, such bilateral support will allow the Mexican government, truth commission, and criminal investigators to fully explore all possible lines of inquiry.

Until then, the National Security Archive observes the fifth anniversary of the disappearance of the 43 as the simultaneous anniversary of a failure to prosecute. We remain vigilant, dedicated to our call for open government, and ready to support this investigation together with the human rights community.  May the opportunity for our support arrive before another five years comes to pass.