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FOIA and Academia, Brass Parachutes, and More: FRINFORMSUM

November 8, 2018

FOIA and Public Universities

A recent New York Times article chronicling several instances of big businesses and lobbyist groups weaponizing FOIA to target researchers at public universities has inspired debate about both the role of corporate FOIA requesters and how to apply FOI laws to public educational institutions. To address the problem, some have proposed a FOIA exemption that could protect pre-publication academec documents similar to the way FOIA’s Exemption 4 protects trade secrets and commercial/financial information. Applying a hypothetical new FOIA exemption to universities raises a slew of questions – not least of which being how to craft an exemption that balances the needs of the public and the needs of academic research, professors, deans, administrators, athletic programs, and coaches.

It also begs the wisdom of crafting a systemic exemption to respond to an issue that has been, to date, anecdotal, and that could theoretically provide the kind of secrecy that was exploited by the CIA during its MKULTRA project. (In 1985 the Supreme Court found in CIA v. Sims that MKULTRA, the illegal mind control experiments that led to the deaths of two Americans, “consisted of some 149 subprojects which the Agency contracted out to various universities, research foundations, and similar institutions. At least 80 institutions and 185 private researchers participated. Because the Agency funded MKULTRA indirectly, many of the participating individuals were unaware that they were dealing with the Agency.”)

Brass Parachutes: The Pentagon’s Revolving Door

Ninety percent of Pentagon officials who go to work for defense contractors after leaving the Department become lobbyists, this according to a recently released a report from Project on Government Oversight (POGO). The research shows that, since 2008, “over 380 high-ranking Department of Defense officials and military officers became lobbyists, board members, executives, or consultants for defense contractors within two years of leaving the Department.” Twenty-five percent of the officials went to work for the Pentagon’s top 5 contractors – Lockheed Martin, Boeing, Raytheon, General Dynamics, and Northrop Grumman. Collectively the data underscores how the revolving door between the Defense Department and the sprawling network of defense contractors creates opportunities for conflict of interest and, at a minimum, the appearance of favoritism.

POGO’s methodology included filing FOIA requests and culling publicly available information in an attempt to recreate what the After Government Employment Advice Repository (AGEAR) might look like if it were made public. Despite the interest in the data, AGEAR, which was mandated in the Fiscal Year 2008 National Defense Authorization Act to track potential conflicts of interest, remains secret, despite a 2008 Government Accountability Office audit that found “significant under-reporting of the contractors’ employment of former [Department of Defense] officials.”

Read the entire POGO report here.

Oversight Summit

POGO is hosting its first annual Oversight Summit on Friday, November 16 “to convene practitioners of oversight, from across sectors and from every point on the political spectrum” to discuss current challenges to oversight. Speakers include former Michigan Senator Carl Levin and the chief counsel for Citizens for Responsibility and Ethics in Washington (CREW), Adam Rappaport, and is hosted with the help of groups including R Street, Sunlight Foundation, and Demand Progress.

Able Archer 35th Anniversary – The Soviet Side of the 1983 War Scare

To commemorate the 35th anniversary of the 1983 War Scare, the Archive’s Able Archer 83 expert Nate Jones published previously secret documents that shed light on the Soviet side of the War Scare. The posting includes a 1981 speech by then-KGB Chairman Yuri Andropov found in the Ukrainian KGB archives announcing that the KGB’s “main objective” had become to not miss “the military preparations of the enemy, its preparations for a nuclear strike, and not to miss the real risk of the outbreak of war.” Other newly published documents include Politburo-level warnings about the war risks from NATO exercises in the fall of 1983 that, combined with other previously secret Soviet documents and declassified U.S. sources, confirm that ranking members of Soviet intelligence, military, and the Politburo, to varying degrees, were fearful of a Western first strike in 1983 under the cover of the NATO exercises Autumn Forge 83 and Able Archer 83.

Apply to the Nuclear History Boot Camp

The application process is now open for the ninth-annual Nuclear History Boot Camp, an initiative of the Nuclear Proliferation International History Project (NPIHP) “Aimed at building a new generation of experts on the international history of nuclear weapons.” The course is a “ten-day immersion in the history of nuclear matters ranging from the evolution of nuclear technology to the origins and development of deterrence theory and nuclear strategy through the historical roots of today’s global nuclear landscape,” and our own Nate Jones is an alumnus.

FOIA Aides Funeral Home Oversight in Michigan 

A state FOI request in Michigan has won the release of a letter detailing deplorable conditions at a closed Detroit funeral home. The letter, which prompted a police investigation, alerted officials at the Michigan Department of Licensing and Regulatory Affairs that “they could find ‘a bunch of infant corpses’ hidden in a crawl space” and that the owner was seeking a way to retrieve them. Police raided the facility the same day they received the letter – October 12 – and found the remains of 10 corpses. Thew news comes shortly after Michigan governor formed a team to address funeral home problems around the state.

Presidential Orders – A Research Aid for Executive Branch Cyber Policy

The National Security Archive’s Cyber Vault’s most recent posting is a growing selection of presidential orders that relate to communication and cyber policy. The documents, dating from the Truman administration through the Trump administration, complement the Cyber Vault’s growing library of cyber-related legislation and court orders. Many presidential directives remain classified, but the Cyber Vault is systematically filing FOIA requests for them and will add them as they become available.

TBT Pick – U.S. Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick is a 2011 posting from our China Documentation Project focusing on the US intelligence community’s monitoring of Chinese research into electromagnetic and microwave radiation with the goal of incapacitating Taiwanese electricity. The posting includes a declassified 2005 report from the US National Ground Intelligence Center describing Chinese experiments on animals concluded that the real objective was to determine the effects of that radiation on humans. Another document highlighted in the posting is a 2010 Defense Department report that discusses Chinese military modernization, Taiwan, and bilateral contact between China and the US.

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Watergate “Road Map” Unsealed After Four Decades, FOIA Raises Questions About Fatal Park Police Shooting, and More: FRINFORMSUM 11/1/2018

November 1, 2018

Long-Sealed Watergate Road Map Released

Chief Judge Baryl Howell of the D.C. Circuit recently ordered the disclosure of the long-secret Watergate “Road Map,” which was compiled by Watergate Special Prosecutor Leon Jaworski and may provide a possible guide for special counsel Robert Mueller.

Judge Howell ordered the release of the Road Map, “one of the last great secrets of the Watergate investigation,” in response to petitions brought by Lawfare’s Stephen Bates, Jack Goldsmith, Benjamin Wittes, and by former Nixon deputy Watergate defense counsel Geoffrey Shepard. The document was initially compiled by Jaworski (who was appointed after the Saturday Night Massacre) as Congress considered impeachment proceedings, and delivered to the to the D.C. Circuit on March 1, 1974. Chief Judge John Sirica then provided it to the House Judiciary Committee.

The document remained under seal at the National Archives and Records Administration until yesterday and contrasts sharply with the only other example of possible impeachment material presented to Congress – the Starr Report, which was nearly 500 pages and was widely publicized. The Jaworski report consists of a 2-page summary, 53 statements of fact, and 97 documents corresponding to each statement. NARA has a website dedicated to the release, and notes, “Many of the numbered statements and 90 of the supporting documents were published in the multi-volume 1974 ‘Statement of Information,’ hearings before the House Judiciary Committee or have been located elsewhere in the public domain. Redactions in this October 31, 2018, release indicate the statements or supporting documents that could not be confirmed as existing in the public domain and which therefore remain grand jury information protected by Federal Rule of Criminal Procedure 6(e).”

OGIS Director Gives Good Advice on How to Improve FOIA Shops

A recent FedScoop article by Jory Heckman focusing on the shortage of FOIA officers at a time when demand has never been higher (4,500 FOIA officers government-wide for 800,000 requests) includes a frank discussion with Alina Semo, the director of the Office of Government Information Services, on some of FOIA’s structural problems. Semo addresses news stories of agency employees referring to the FOIA office as “Siberia” and resenting reassignments to the office, saying that keeping agency FOIA shops fully staffed “is particularly challenging the federal government, especially lately where there has been a perception that the FOIA is where employees are assigned as a form of punishment.”

Semo states that a FOIA job series issued by the Office of Personnel Management in 2012 that recognizes FOIA officers as a professional career track and provides a ladder for people who want to make a career out of FOIA is a “good start” – but notes more needs to be done. She says, especially at a time when more agency records are electronic, “Spending some time about thinking how a record can be released at the beginning of the information lifecycle can save an agency scarce resources later in the FOIA release process.”

FOIA Release Raises More Questions About Park Police’s Fatal Shooting of Unarmed Motorist

The Washington Post’s investigation of the fatal shooting of Bijan Ghaisar last year in Northern Virginia after a hit-and-run has gotten a substantial boost thanks to a FOIA request the paper filed with the Fairfax County police.

Ghaisar, 25, was driving his Jeep on the George Washington Parkway when he abruptly stopped and was rear-ended by an Uber. Ghaisar drove off and the Uber driver called the police; Park Police responded first and tried to stop Ghaisar twice – each time with their guns drawn. Ghaisar fled until being stopped a third time and blocked by a police cruiser. Both officers opened fire when Ghaisar tried to maneuver around the police vehicle.  Ghaisar, who was unarmed, died from his wounds in a hospital 10 days later.

The FOIA-released report shows “the Park Police officers had to smash open Ghaisar’s driver’s side window to free him from his vehicle after they shot him.” It also indicates that “Fairfax crime scene detectives soon arrived at the scene but were waved off the case by Park Police investigators. Under state law, the Park Police have arrest authority in Northern Virginia outside of the parks.”

The Park Police declined to confirm the identities of the two officers involved, both of whom are still on the job. “While the Park Police headed the investigation, they treated the mortally wounded Ghaisar as a suspect, his family said, not allowing family members to touch him and to spend 10 minutes per hour with him. They did not notify the Ghaisars of the shooting until more than five hours after it happened, the Ghaisars said. After three days, the Park Police turned the case over to the FBI, which allowed the Ghaisars to spend time with Bijan until he died on Nov. 27.”

Cyber Brief: Cyber Security in the US Legal Code

The Archive’s Cyber Vault’s latest Cyber Brief update focuses on how the U.S. legal code deals with cyber security. The posting includes titles and sections that are key to understanding the complex delegation of legal authorities governing the actions of Federal agencies. They include sections from Title 6 – Domestic Security, such as sections dealing with “Information and Analysis and Infrastructure Protection; Access to Information,” Title 10’s “Authorities Concerning Military Cyber Operations”, Title 50’s “Responsibilities of the Secretary of Defense pertaining to National Intelligence Program”, and much more.

60th Anniversary of Irish Resolution: A Forerunner of the NPT

Sixty years ago, in October 1958, Irish Minister of External Affairs Frank Aiken bought before the United Nations the first version of a resolution addressing the dangers of nuclear proliferation. U.S. State Department officials initially found it “potentially dangerous” and “disruptive,” but three years later the U.S. government voted, with the rest of the U.N. General Assembly, in favor of the “Irish Resolution,” which is widely regarded as the forerunner of the Nuclear Nonproliferation Treaty (NPT).

The National Security Archive commemorated the resolution’s anniversary by publishing for the first time declassified U.S. government documents on developments in U.S. policy toward the resolution – from initial hostility to eventual support – including records of discussions with Aiken and other Irish officials over the resolution and its wording.

TBT Pick – The CIA’s Vietnam Histories

This week’s #TBT pick is a 2009 posting from the Archive’s Vietnam Project Director John Prados and concerns the CIA’s declassified Vietnam histories showing the agency’s involvement in all aspects of the Indochina War. The six volumes released in response to an Archive FOIA request document CIA activities in South and North Vietnam, Laos, and Cambodia in unprecedented detail and shed light on aspects of the CIA’s work that were not well known or were poorly understood. The revelations include:

  • The CIA and U.S. Embassy engaged in secret diplomatic exchanges with enemy insurgents of the National Liberation Front, at first with the approval of the South Vietnamese government, a channel which collapsed in the face of deliberate obstruction by South Vietnamese officials;
  • CIA raids into North Vietnam took place as late as 1970, and the program authorizing them was not terminated until April 1972, despite obtaining no measurable results; and
  • As early as 1954 that Saigon leader Ngo Dinh Diem would ultimately fail to gain the support of the South Vietnamese people. Meanwhile the CIA crafted a case officer-source relationship with Diem’s brother Ngo Dinh Nhu as early as 1952, a time when the French were still fighting for Indochina.

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Judge Tells DHS that FOIA isn’t Battleship, Long-Vacant PCLOB Positions Filled, and More: FRINFORMSUM 10/25/2018

October 25, 2018

Judge Tells DHS that FOIA isn’t Battleship

U.S. District Judge Christopher Cooper sided with the Government Accountability Project in its FOIA lawsuit against the Department of Homeland Security, chiding DHS for responding to GAP’s FOIA request as if FOIA processing was done according to the “rules of Battleship.” GAP’s FOIA initially sought DHS records concerning “ideological tests” and “searches of cellphones” at border crossings, which prompted DHS to look for records only containing those verbatim search terms, and finding zero responsive documents as a result. Cooper was not impressed with DHS’ tactic of looking for only direct hits to find responsive documents, ruling that, “Because FOIA requests do not operate like a game of Battleship—and for other 2 more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew.” TechDirt’s Tim Cushing highlights a few of Cooper’s choice quotes, noting among other things that, “[T]hough a requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890. And ultimately, it is the agency’s burden to show ‘beyond material doubt that its search was reasonably calculated to uncover all relevant documents.’”

The memorandum opinion can be read here. The government’s counsel in this case is Jessie K. Lie, United States Attorney, Daniel F. Van Horn, Civil Chief, and Jeremy S. Simon, the Assistant United States Attorney – Civil Division.

PCLOB, Operating Without Enough Members for A Quorum for 18 Months, Gets New Members

The Privacy and Civil Liberties Oversight Board, an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties, will finally get new members. The Senate recently voted to approve three nominations to the Board: Adam Klein, who will serve as chair, and Edward Felten and Jane Nitze, who will join the Board’s only current member, Elisebeth Collins. Travis LeBlanc and Aditya Bamzai, nominated by President Trump in August, are still awaiting approval.

The additions are significant. PCLOB has been unable to fulfill its mandate due to lack of staffing since early 2017. It is supposed to be staffed by one full-time chair and four part-time members but, for more than a year and a half, only one of the board’s part-time seats was filled. The understaffing was revealed thanks to a FOIA request by the Intercept, which noted that the board was therefore unable to “submit to Congress either its semi-annual reports, which detail the conclusions of its investigations, or its plans for declassifying information it has uncovered. The board can’t hold public meetings, which have offered the chance for public input in the past, or give formal recommendations to the intelligence community.”

PCLOB was not staffed at full-force by the end of the Obama administration, either. The Board’s last chair was David Medine, who retired two years early in 2016 for a position in the private sector. His retirement came after The Washington Post’s Ellen Nakashima reported that Republicans on the House Intelligence Committee advanced a provision to the 2016 intelligence authorization bill that would block PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by Medine arguing that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

District of Columbia Files FOIA Suit Against ICE

The Attorney General for the District of Columbia has filed a FOIA lawsuit against Immigration and Customs Enforcement (ICE) for failing to properly respond to requests for information about ICE’s actions in the District. Local media reports, “The lawsuit alleges ICE did not properly respond to AG Racine’s requests demanding information about ICE raids in predominantly Latino communities in the District this summer. The requests asked ICE to identify the individuals who were detained, give reasons for the detentions, and explain the agency’s immigration enforcement policies.” The complaint can be found here.

Ancestry.com Getting Special Treatment?

Does Ancestry.com get preferential access to archival records? A recent Buzzfeed News article based on a FOI lawsuit brought by the nonprofit group Reclaim the Records alleges that the answer is yes – and that it happens not irregularly. Buzzfeed details an open records lawsuit brought by Reclaim the Records against the New York Department of Health, which alleges that while the department received a FOIA request for a death index covering the years 1880 – 1952 from both Reclaim the Records and Ancestry.com at the same time, the department processed Ancestry’s response first. The index in question was contained on microfiche and the department initially told Brooke Schreier Ganz, founder of Reclaim the Records, that the rolls needed to be scanned and digitized and processing the request would cost roughly $152,000. Several months after the request was filed, however, Ganz was informed that the scanning had already been done by Ancestry and there was no need to pay fees for the records.

Ancestry told Buzzfeed that the organization is “often asked to support government entities with records collection. In 2017, the New York Department of Health requested that Ancestry create digital images of the NY State death indexes from fiche. Ancestry created and provided a digitized copy of the fiche to the NYDOH at the company’s own expense.” Other state and local agencies, like the Wisconsin Historical Society and the Willamette Valley Genealogical Society, reported having similar arrangements with the company – but one that allowed Ancestry exclusive access to the records for several years.

Reclaim the Records is now suing for documents “to see all communications — emails, vendor contracts, meeting minutes — between Department of Health employees and Ancestry to find out how and why Ancestry’s FOIL was seemingly given preferential treatment. The agency rejected it.”

#TBT Pick- Mexico Mass Graves Raise “Alarming Questions” about Government “Complicity” in September 2014 Cartel Killings

This week’s #TBT pick is a 2015 posting by Archive analyst Michael Evans regarding the “level of government complicity” in Mexican cartel killings. It highlights 14 documents declassified thanks to National Security Archive FOIA requests that shed light on how the U.S. has perceived and responded to allegations of serious human rights abuses committed by U.S.-funded security forces in Mexico. The documents include an October 2014 U.S. Northern Command summary of two major human rights cases of concern that month. The first case was related to the alleged military involvement in the Tlatlaya killings, in which four individuals had been taken into civilian custody (three soldiers for murder charges and one lieutenant for cover up charges) and an additional four soldiers were in military custody for violations of the military justice code. The other issue was police involvement in the disappearance of 43 students from Ayotzinapa kidnapped in Guerrero.

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

October 18, 2018

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

Gina Haspel CIA Torture Cables’ Dates and Times Declassified

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

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

Fish and Wildlife Service Moves to Limit Information Released under FOIA

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

Interior IG’s Replacement Comes as Surprise to Interior IG

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

DOE Belatedly Declassifies Decision Announcing Declassification

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

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

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

FOIA Suit Challenges Definition of a ‘Record’

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

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

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

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

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

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

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

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

October 4, 2018

FOIA’s Foreseeable Harm Standard Gets Boost from The Court

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

The FBI’S “Green Book”

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

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

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

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

The Government’s Real-Life Indiana Jones Warehouse

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

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

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

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

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

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

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

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

Remembering Steve Garfinkel

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

Cyber Brief: Maritime Cyber Security

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

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

October 4, 2018

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

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

The Washington Records Center via Google Maps.

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

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

“Bother someone else for the old stuff.”

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

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

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

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

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

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

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

An (online) SF 135.

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

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

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

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

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

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

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

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

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

September 27, 2018

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

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

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

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

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

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

NYT Sues FCC Over Net Neutrality FOIA Response

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

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

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

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

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

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

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

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

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

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

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

Cyber Brief: White House and Department of Defense Cyber Strategies

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

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