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OMB’s Proposed FOIA Fee Guideline Revisions Don’t Go Far Enough, State Department Historical Advisory Report Slams DoD Performance Again, and More: FRINFORMSUM 5/8/2020

May 8, 2020

 

OMB’s Proposed FOIA Fee Guideline Revisions Don’t Go Far Enough

The Office of Management and Budget is currently accepting comments on proposed revisions to its uniform FOIA Fee Guidelines, which date from 1987 and govern when and how all agencies can charge FOIA fees. The revisions are unconscionably belated, were undertaken not voluntarily but only because of an Administrative Procedures Act lawsuit filed by Cause of Action, and do not go far enough to address several major flaws that the guidelines have had since their inception.

OMB’s 2020 revisions should focus on improving inadequate language from the 1987 guidelines related to FOIA requester fee categories. FOIA is not free, but requesters placed in “preferred” fee categories, like representatives of the news media or educational institutions, are entitled to significantly reduced fees that should often result in all fees being waived. The news media fee category in particular, thanks to the landmark case National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989) and later 2007 statutory amendments to the FOIA, should be applied equally to freelance journalists, bloggers, digital publishers, and compilers of released documents.

However, OMB’s fee guidelines never incorporated D.C. Circuit language from the Archive’s victory, or statutory revisions to the law, and instead maintained the most restrictive interpretations of these fee categories as possible. This has led to decades of wasteful litigation because requesters were forced to challenge inappropriate requester fee category denials in court.

OMB should take this opportunity to include the D.C. Circuit’s language on “news media” in the revised Fee Guidelines. The Guidelines should also explicitly include scholarly organizations, think tanks, high schools, and other educational institutions in the educational requester fee category.

OMB is accepting comments on the proposed revisions until June 3, 2020.

 

State Department Historical Advisory Report Slams DoD Performance Again

For the third year in a row, the State Department’s Historical Advisory Committee (HAC) excoriates the Defense Department 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 2019, the HAC says The pace of the reviews of FRUS volumes submitted to the interagency review process was again disappointing. Notwithstanding some slight improvement, the Department of Defense (DoD) remained the principal obstacle.” The report further notes that DOD “responded to less than one-third of the volumes that OH submitted for its review, it took more than 4-times longer than the mandated timeline when it did respond, and its few responses were of poor quality.” The HAC recommended that “DoD to take its cue from the CIA, notwithstanding the challenges that agency confronts in declassifying documents and meeting the mandated timelines for FRUS reviews.”

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.” Yet the office published only two FRUS publications in 2019 – down from six in 2018 and eight in 2017. These volumes are:

  • FRUS, 1977–1980, Volume XIX, South Asia (August 8)
  • FRUS, 1969–1976, Volume E–9, Part 2, Documents on the Middle East Region, 1973–76 (October 23)

There was some good news in this year’s report, however. The HAC praised the performance of both the State Department’s Office of Information Programs and Services and the National Security Council’s (NSC’s) Office of Records and Information Security Management.

Senate Judiciary Demands Answers from DOJ on FOIA Compliance During COVID

Senators Patrick Leahy, Chuck Grassley, Diane Feinstein, and John Cornyn recently sent a bipartisan letter to the Justice Department’s Office of Information Policy demanding answers on agencies decreased capabilities processing FOIA requests during the COVID-19 pandemic (the Archive’s own running list of FOIA-related COVID-19 updates can be found here). As the senators noted, “Of course, government transparency and accountability is even more important during a time of crisis. While many agencies have sought to be clear about their temporarily reduced capabilities, we are concerned that some, particularly the FBI, may have created unnecessary burdens on requesters in response to the COVID-19 national emergency declaration,” going on to note “We understand all agencies and departments are continuing to adapt to the current circumstances, but it is the [Justice] Department’s duty to ensure that FOIA administration is not simply cast aside as a temporary inconvenience.”

The senators told OIP to provide the committee with, among other things, a list “of agencies and departments that have limited in any manner their acceptance of FOIA requests or delayed processing of such requests due to the current crisis, along with OIP’s understanding of the specific reasons for such limitations and delays,” and the “specific steps, if any, has OIP taken during the pandemic to encourage the use and integration of technology into agencies’ FOIA processing protocols”.

OGIS Hosts Webinar with CDC’s FOIA Shop During COVID

The Office of Government Information Services is hosting a webinar on Tuesday, May 12 with the Centers for Disease Control and Prevention’s FOIA leadership, “who will provide insight into the agency’s FOIA program and suggest strategies for successful FOIA requests.” Registration is required for the event, for which attendees can submit questions in advance. A question likely on many requesters minds: Why does anecdotal evidence show that CDC is responding to FOIA requests with the carte blanche (and often inappropriate) response that the requests are too broad? Tune in to find out.

WaPo Sues State Department for COVID Cables

The Washington Post is suing the State Department after the Department denied the Post’s request for expedited processing for documents concerning the Wuhan Institute of Virology, “which has conducted studies on bat coronaviruses like the one that has caused the current health crisis.” The expedited processing request was denied on the grounds that the State Department found “no ‘compelling need” to rush the information. Read more here.

FOIA Wins Release of Historic OLC Opinions

In a major victory, the Knight First Amendment Institute at Columbia University has won the release of 96-Nixon Era Office of Legal Counsel opinions (OLC opinions that have previously been hidden, at least in part, by FOIA’s “deliberative process” exemption). The Knight Institute filed the FOIA request in February 2019, seeking all OLC opinions written prior to 1994, and filed suit when OLC failed to respond to the request with any documents. The opinions are now free thanks to the efforts of Senators Leahy, Grassley, Cornyn, and others, who mandated a 25-year sunset to the “deliberative process” exemption in the 2016 FOIA Improvement Act.

FCC Net Neutrality Records

Federal Judge Lorna Schofield has ordered the Federal Communications Commission to fulfill FOIA requests from two New York Times reporters seeking “server logs that may provide new insight into the allegations of fraud stemming from agency’s 2017 net neutrality rollback.” The ongoing saga began nearly three years ago when the FCC stonewalled FOIA requests for information related to an alleged DDoS attack the agency claimed crashed its online public comment system; the supposed attack came after the FCC chair, Ajit Pai, proposed to “dismantle net neutrality rules” and HBO’s John Oliver encouraged the public to comment on the proposed changes. In her ruling, Judge Schofield held that the FCC, which argued making the IP addresses in question public would violate personal privacy, “failed to adequately spell out how anyone would be harmed by the disclosure”; instead finding that the public interest in the disclosure outweighed any hypothetical harm.

 

CIA Spymaster Frank Anderson, 1942 – 2020

April 6, 2020

An undated photo of former CIA officer Frank Anderson. (Family photo)

Read his 1999 Interview with the Archive on Arming the Afghan Mujahideen Against Soviet Occupation

By Claire Harvey

Frank Anderson, the architect of the CIA’s Afghan Task Force in charge of arming the Afghan mujahideen against the Soviet occupation in the late 1980s, died on January 27, 2020 at age 78 in Sarasota, Florida. Anderson’s decades-long career included service as chief of Directorate of Operations in the Near East and South Asia division, and director of the Office of Technical Services, where he was responsible for arming clandestine officers with gadgets, disguises, and weapons. After he left the agency to become the head of the Middle East Policy Council, Anderson became a vocal critic of the Agency’s torture program.

An Afghan guerrilla handles a U.S.-made Stinger anti-aircraft missile. The shoulder-fired, heat-seeking missile supplied to the Afghan resistance by the CIA during the Soviet invasion of Afghanistan, is capable of bringing down low-flying planes and helicopters.
AP Photo/David Stewart Smith

Anderson was one of dozens of high-level officials interviewed during the National Security Archive’s and CNN’s 24-part, Peabody-award-winning documentary series, Cold War. Anderson’s interview took place one year after the terrorist bombings of the United States embassies in Tanzania and Kenya, which killed more than 200 people and prompted President Clinton to order cruise missile attacks targeting Osama bin Laden’s training camps in Afghanistan.

Anderson said of the historical implications of aiding the Afghan mujahideen:

We worked very hard to ensure that there was no favoritism towards fundamentalist parties. We struggled with an understanding that a post war Afghanistan would not probably be very friendly to the United States. … [To those who say] …well we aided the fundamentalists and now we have the terrorism problem. It just doesn’t stand up to even a cursory examination in light of very recent and mid-term history. We had a terrorism problem before … [and] we have a terrorism problem now.

Anderson also emphasized that the CIA was not able to choose winners and losers among the many factions fighting in Afghanistan against the Soviets. He stated, “we were not in a position to turn the tap or close it, at one week to the next in order to support the policy side.” Going into further detail, Anderson noted that:

Did we give aid to fundamentalist groups; did we give aid to moderate groups? What we did was give aid to the fighters and … I think we were quite successful in structuring our program so that the support went to those who were actually engaged in fighting, and, in fact, it was packaged for commanders for specific operations, and the effect of that was that it was distributed on really close to a per capital ratio.”

A fighter in Afghanistan’s Paktia Province holding his combat ration of peanut butter from the United States, on July 11, 1986.
AP Photo/Barry Renfrew

The full video series of  CNN’s Cold War series is available on YouTube here. The Archive has made available the accompanying transcripts of interviews for each episode, including interviews with George Bush, Aldrich Ames, Robert McNamara, and Henry Kissinger (to name a few), and can be found here.

Anderson retired from the agency in 1994 after former director James Woolsey ordered his reassignment over a dispute involving Anderson’s longtime colleague, Milton Bearden, and the scandal around Soviet spy Aldrich Ames. (Ames was charged under the Espionage Act in 1994 of leaking classified CIA documents to the Soviet Union and Russia, and pleaded guilty to selling classified national security information to the KGB in exchange for almost 5 million dollars.”)

In response to the Ames scandal, Woolsey issued severe reprimands to 11 senior officials— including Bearden, who failed to detect that Ames was a mole while under Bearden’s supervision. Anderson went to Germany the day after the reprimands were issued to present Bearden with an award for his work as Islamabad station chief throughout the 1980s. The New York Times reports that, “[Woolsey] apparently saw the award given to Mr. Bearden as a serious error in judgement, not an act of defiance.” In response, Woolsey demoted Anderson, who opted to resign rather than accept the re-assignment.

Anderson later served as President of the Middle East Policy Council, where, he was an outspoken critic of the agency’s torture program. In 2014, Anderson wrote for the Miami Herald:

“As an operations officer and leader, I learned that good guys have bad days, and that fear, anger and ambition degrade, rather than enhance, judgment and decision making. My friends and colleagues made serious errors in just such an atmosphere.”

Fighting Forever Secrets, COVID-19 and FOIA, and More: FRINFORMSUM 4/2/2020

April 2, 2020

Mourners carried the coffin of a lynching victim out of Mount Perry Baptist Church in Bishop, Ga., in 1946. The lynching was a quadruple killing. Photo Credit: The Atlanta Journal-Constitution/Associated Press

Appeals Court Rules in Favor of Forever Secrets

A federal appeals court in Georgia has ruled “that federal judges do not have the authority to unseal federal grand jury records, except for a limited set of circumstances governing grand jury rules of secrecy.” The case, Pitch v. US, sought grand jury records concerning the murder and lynching of two black couples (Roger and Dorothy Malcom and George and Mae Murray Dorsey) by a mob of white men in rural Georgia in 1946. The appeal court’s 8-4 decision overturned the lower court’s 2017 decision that the records – which are being held at the National Archives – be released. The Plaintiff’s lawyer, Joseph J. Bell Jr., has said he plans to appeal the decision to the Supreme Court.

In September 2019 the National Security Archive joined eight other scholarly organizations in filing an amicus brief in the case, arguing that courts have the inherent authority to unseal grand jury records in special circumstances and in cases of historical significance, just as they did in releasing the secret grand jury testimony of David Greenglass –the brother of Ethel Rosenberg. The Greenglass testimony, which was released thanks to a lawsuit brought by the National Security Archive and major historical and archival associations, suggests David committed perjury on the witness stand in the Rosenberg spy trial by providing false testimony against his sister in order to save his wife, Ruth.

The Archive was represented pro bono in its Pitch amicus by the Public Citizen Litigation Group; the other amici include the American Historical Association, the American Society for Legal History, the Organization of American Historians, and the Society of American Archivists.

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COVID-19 FOIA Updates

The COVID-19 crisis has impacted FOIA shops across the federal government. As of writing this:

  • The FBI has stopped processing emailed FOIA requests, instead requiring requesters to send requests via snail mail. Buzzfeed News’ Jason Leopold broke the news, noting that the Bureau did not explain the rationale for demanding requests be sent by hand – at a time when all Americans are being strongly encouraged to stay home – rather than by computer.
    • The FBI didn’t stop there; the Bureau later sent home the entire FOIA division with the argument that processing FOIA requests is not critical to the organization’s mission.
  • The State Department reported in a court filing that its FOIA-processing capacity has plummeted by 96%. The radical drop is explained by the fact that State’s FOIA shop is heavily reliant on retired, part-time Limited Non-Career Appointment (LNA) Foreign Service Officers with decades of experience in foreign policy – most of whom are older and “very few” of whom were set to perform telework.
    • State official Eric Stein said “he ordered the retired employees to stay out of the office for ‘several weeks’ because the FOIA work wasn’t considered mission critical, but he also expressed concerns for their health due to their age.”
    • On March 20, Buzzfeed News’ Leopold posted a screenshot from the State Department’s FOIA page, noting “In response to the unprecedented COVID-19 pandemic, many agencies, including the Department of State, have been forced to suspend FOIA operations until further notice.”
  • A Congressional Research Service report highlighted by Steve Aftergood on his Secrecy News blog gives a short overview of FOIA processing changes due to COVID. In addition to flagging changes at the FBI, it notes that the Centers for Disease Control and Prevention has stopped accepting mailed requests, instead requiring requests be submitted electronically.
    • Adam Marshall of the Reporters Committee for the Freedom of the Press pointed out on Twitter that the CDC adapted to COVID-19 by publicizing not one – but four ways requesters could submit requests electronically.
  • The Philadelphia Inquirer’s William Bender and Jeremy Roebuck have a good round-up of COVID’s impact on state and local FOI shops here.

Pentagon Wants to Make Spending Projections Secret

In the midst of the current public health crisis, the Defense Department is asking Congress to “rescind the requirement to produce an unclassified version of the Future Years Defense Program (FYDP) database,” which the DoD has provided since 1989 to provide spending projections for the next five years. Steve Aftergood has an excellent analysis of the problematic proposal, noting that “At a time when it is clear to everyone that US national security spending is poorly aligned with actual threats to the nation, the DoD proposal would make it even harder for Congress and the public to refocus and reconstruct the defense budget.”

The DoD has been required to produce an unclassified FYDO since 1989, but now argues that data mining tools could be applied to the large volume of information and allow adversaries to “derive sensitive information.”

The move to discontinue producing an unclassified FYDP comes as a part of a “broader retreat from public oversight and accountability, the Pentagon today does not make its legislative proposals easily accessible to the public,” Aftergood says. The Department has also stopped publishing its legislative proposals to Congress and has proposed a new FOIA exemption for unclassified documents concerning military techniques – an exemption that Congress has rejected at least four times.

Sunshine Week Round-Up, Ways to Strengthen the Presidential Records Act, COVID-19 Transparency Resources, and More: FRINFORMSUM 3/20/2020

March 20, 2020

Sunshine Week Round-Up

GAO Report Released

Today marks the end of this year’s Sunshine Week, the annual, week-long celebration of access to information. To mark the occasion, Senators Patrick Leahy, Charles Grassley, Dianne Feinstein, and John Cornyn, together with House Oversight Chair Carolyn Maloney, released the results of the first of two GAO reports on agency compliance with the 2016 FOIA amendments. The legislation required agencies to update their FOIA regulations within 180 days of passage, and mandated a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), among other key fixes.

The report’s key findings include:

  • Costs of litigating FOIA requests have shot up nearly 70% since FY 2012.
  • FOIA requests have increased 30% since FY2012, but FOIA staff have increased by only 21%.
  • Only a quarter of requests were granted in full in FY 2018.
  • Agencies, which are required to proactively post documents likely to be of public interest or that are the subject of three or more FOIA requests, published fewer than 155,000 documents proactively in FY2018.

Principal Deputy Associate Attorney General Claire Murray

Misinformation at OIP Event

A Justice Department official used the Department of Justice’s Office of Information Policy Sunshine Week event to spread misinformation on FOIA. Principal Deputy Associate Attorney General Claire Murray said that FOIA requesters are now litigating more quickly – a statement that is not borne out by the data, which shows that requesters are actually waiting longer to file FOIA lawsuits; Murray went on to imply that ordinary requesters were suffering because of “the well-funded” filing FOIA lawsuits. The Transactional Records Access Clearinghouse at Syracuse University (TRAC) published a thorough rebuttal, noting that Murray’s “counterfactual claim was used to sow unnecessary division between, on the one hand, citizens who seek remedy in court when the government fails to comply with the law, and, on the other, government staff and ‘ordinary citizens.’ The fact that FOIA requesters are waiting longer to file lawsuits when the government fails to keep its end of the bargain suggests that requesters would, in fact, prefer to work with the government to avoid the expensive and lengthy process of litigation.”

The FBI Stops Accepting FOIA Requests by Email, Sends FOIA Staff Home

The FBI took two steps this Sunshine Week that virtually assured no FOIA work will happen for the foreseeable future. For its first move, the FBI, citing COVID-19, told requesters that it would no longer accept emailed requests, instead requiring requesters to send requests via snail mail. Buzzfeed News’ Jason Leopold pointed out the counter-intuitive move on Twitter, noting that the Bureau did not explain the rationale for demanding requests be sent by hand – at a time when all Americans are being strongly encouraged to stay home – rather than by computer. (Leopold also notes that the FBI’s FOIA regulations state that all Bureau components “have the capability to receive requests electronically either through email or a web portal.”

The FBI didn’t stop there. For its second move they sent home the entire FOIA division with the argument that processing FOIA requests is not critical to the organization’s mission.

601 Consecutive Pages Withheld under B5

The American Immigration Council filed a FOIA request for records on Customs and Border Protection’s use of Border Patrol officers as asylum officers and were rewarded for their efforts with over 600 pages of completely redacted documents. The exemption cited? FOIA’s “withhold it because you want to” Exemption 5; a discretionary exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. Considering both that OIP’s own guidance on the exemption states that the exemption should be applied to “only those documents that are normally privileged in the civil discovery context”, and that FOIA prohibits agencies from withholding information to prevent embarrassment, hide errors and failures, or because of speculative or abstract fears, it strains credulity that the entire 600+ pages could be entirely exempt from disclosure. Thanks to AIC’s Aaron Reichlin-Melnick for flagging.

What Instant Messages?

Americans for Prosperity and Cause of Action have published a wonderful report on how many agencies are not complying with either the Federal Records Act or the Freedom of Information Act when it comes to preserving instant messages and providing them in response to public records requests. The key takeaway: “Only four agencies receive passing scores: FCC, CIGIE, USDA, and NASA,” and 36 agencies either failed or did not respond to the FOIA request requesting information on their agency’s IM records management policies.

Sunshine Chat

Today the National Security Archive will be joining twelve other transparency organizations in a Twitter Q&A on the importance of freedom of information. Follow the event, organized by our friends at the Reporters Committee for Freedom of the Press, starting at 2 PM ET with the hashtag #SunshineChat2020!

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How Transparent is President Trump? Audit Shows Three-Quarters of His Decisions Bad for Openness

President Trump has made three times as many pro-secrecy decisions as pro-transparency ones since taking office, this according to a National Security Archive Audit released to mark Sunshine Week. The survey found that the President’s anti-transparency decisions – including classifying coronavirus talks, hiding the White House visitor logs, and keeping his tax returns secret – significantly outnumber the good transparency decisions he’s made, including following through with the Argentina declassification project and working for more transparent hospital and prescription drug prices.

The Archive audit team scoured White House press releases, news reports, and court cases to create an interactive chronology of Trump’s good, bad, and occasionally perplexing transparency decisions since taking office. The results undercut the President’s repeated claim that he is the most transparent president in history, but do provide some insights into areas where the President and his team have consistently promoted transparency.

Strengthening the Presidential Records Act

The Archive’s Sunshine Week Audit, which highlighted President Trump’s anti-transparency behavior – including ripping up his papers once he’s done with them – underscores the need to strengthen the Presidential Records Act. Some possible fixes include:

  • Congress outlawing disappearing instant messages. In 2018, the U.S. District Court for the District of Columbia’s Judge Christopher Cooper ruled against Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive in our Presidential Records Act lawsuit targeting the Trump administration’s use of disappearing messaging apps. Cooper said the plaintiffs were“likely right on the merits, but that he was nevertheless constrained to grant a government request to dismiss the suit on procedural grounds” – in part because Congress made no provision for private groups to seek the enforcement of the PRA.
  • Explicitly requiring the President “to make and preserve records”, just as the Federal Records Act requires agencies to do.
  • Striking the disposal provisions of the law (2203 (c)-(e)). The era of cloud storage eliminates the need to dispose of records in the first place, and if disposable is not enabled by law, automatically saving the records would be the default.
  • Congress statutorily requiring the White House Office of Administration to monitor and report on the Executive Office of the President’s compliance with the PRA.
  • Congress requiring the Archivist of the United States to monitor, review and report on EOP compliance with the PRA, and for the Archivist to review and sign off on White House record-keeping guidelines and practices.

The PRA was most recently amended in 2014. Those amendments established a process for the publication of presidential records after the president leaves office, made it harder for former executives to block publication of their records by citing executive privilege; forbade executive branch officials from conducting government business over personal email, thereby evading the FOIA; and modernized records management by expanding and clarifying the definition of electronic records.

COVID-19 Transparency Resource

The Project on Government Oversight has launched a website dedicated to tracking COVID-19 transparency resources. As of writing this, the page has nearly two dozen Congressional Research Service reports relevant to the crisis, as well as Government Accountability Office reports, federal pandemic response plans, and a variety of other useful resources. 

Salvadoran Court Needs U.S. Documents on El Mozote Massacre

Salvadoran Judge Jorge Guzmán Urquilla, who is overseeing the trial of the perpetrators of the 1981 El Mozote massacre is requesting access to U.S. government records on the crime (the massacre took place during the country’s 12-year civil war and ranks, with the deaths of over a thousand citizens, as the worst in modern Latin American history). The trial began in 2016, but Judge Urquilla recently requested help from Secretary of State Mike Pompeo, writing that US records “could be very valuable to us.” So far, the State Department has not responded.

The Archive’s Kate Doyle has used FOIA to obtain hundreds of Clinton-era records on the Salvadoran civil war, but knows there are more documents that need to be published. “There is no doubt that we would find incredibly strong and relevant information related to this case if the U.S. opened up its archives,” Doyle told the Washington Post. “The CIA and defense attaches had a direct line to senior Salvadoran military structures, with direct access to army commanders on the field. They had detailed information about what the regime was doing in its counterinsurgency campaign.”

False Warnings of Soviet Missile Attacks Put U.S. Forces on Alert

During the Cold War, false alarms of missile attacks were closely held matters although news of them inevitably leaked. The National Security Archive recently revisited the false alerts of the Jimmy Carter administration when on four occasions warning screens showed hundreds and hundreds of Soviet ballistic missiles heading toward North America.

In a reposting and update of a 2012 collection, the Archive includes recently declassified documents with new details about the 1979 and 1980 false warnings. One document, notes by William Odom, the military assistant to National Security Advisor Zbigniew Brzezinski, raises questions as to whether Odom called the latter in the middle of the night about the possibility that Soviet ICBMs were incoming. Such a phone call was a major element of the 2012 posting, but Odom’s notes on the 3 June 1980 false alarm make the picture murkier. The only certainty is when Odom spoke to Brzezinski that day, he assured him he had kept the White House “in the loop” during the period of the false alarm.

The false alarms of 1979 and 1980 instigated major efforts to ensure that computers did not generate mistaken information that could trigger a nuclear war. In today’s world where more medium size to great powers, such as North Korea and China, either have ICBMs or are testing them the potential for false alarms is growing.

Sunshine Week Special: NARA’s Oldest FOIA Request- At 26 Years Old- Is About to Get Kicked Off Its Parent’s Insurance

March 16, 2020
Update: NARA’s General Counsel and Chief FOIA Officer, Gary Stern, reached out to the Archive concerning our blog post on his agency’s 26-year-old FOIA request; the data used for the blog was found in NARA’s FY2019 FOIA report. Stern points out that the FOIA request in question, along with several others, were processed after the completion of the FY2019 report. Stern’s full comments are as follows: 
“The National Archives and Records Administration (NARA) understands the National Security Archive’s concern about NARA’s oldest FOIA cases.The good news is that NARA was able to close the 1994 case in November 2019 (based on a required third agency declassification review). We’ve since closed seven of our current ten oldest cases, which now means our oldest FOIA case is from 2004. While 16 years is still too long for a requester to have to wait for a complete response, NARA is doing as much as we can with our limited resources to respond to all FOIA requesters.” 
We appreciate both the update and that NARA continues to engage with requesters on their FOIA concerns! 

By Claire Harvey

The National Archives and Records Administration oldest pending FOIA request is about to turn 26 years old, according to NARA’s 2019 Fiscal Year Annual FOIA Report. To put this delay in perspective, the 1994 FOIA request is so old that it is nearing one of the last benchmarks of young adulthood: being forced off your parent’s health insurance plan. The report was released in anticipation of Sunshine Week, the annual nationwide celebration of open access to public information, which begins today, March 16th.  Check out the Archive’s 2020 audit, which found that over the past four years nearly three quarters of the White House decisions have contradicted the President’s claim that he is “the most transparent President in history.”

NARA’s 1994 FOIA request indicates that the agency’s chronic processing delays have worsened since the Archive’s 2019 Sunshine Week audit, which found that in FY2018, the oldest report was from 1993, or 25 years old. The FY2019 FOIA report also shows that NARA’s oldest administrative appeals are aging too; an October 2012 appeal has been the agency’s oldest for five years.

Image: NARA FY2019 FOIA Report

The Nation Security Archive’s 2019 Sunshine Week Audit found a correlation between agencies with oldest FOIA requests and those with the largest FOIA backlogs. After parsing through annual FOIA Reports, the survey found that delays are frequently the result of “referral black holes.” Despite being costly, redundant, and inefficient, agencies regularly refer FOIA requests to any agency with possible equities, resulting in often decades-long delays and the re-review of the same document multiple times.

Agencies are required to send their annual FOIA reports to the Department of Justice’s Office of Information Policy. As of writing this, 11 out of 15 departments and 83 out of 100 agencies have posted their FY2019 Annual Reports. While NARA has published its FY2019 report on its website, OIP has yet to add it to their own site. 17 other agencies that have published their FY2019 reports online have not been added to OIP’s site. The OIP reports page- particularly for historic reports-is plagued by broken links, such as the DOD’s FY2019 and FY2018 annual FOIA reports. This makes it impossible for the public to access previous FOIA statistics and chart agencies’ progress.

The National Security Archive has conducted 19 audits since 2002. Modeled after the California Sunshine Survey and subsequent state “FOI Audits,” the Archive’s FOIA Audits use open-government laws to test whether or not agencies are obeying those same laws. Read our newest audit here. Check out our previous audits below:

 

 

 

Judge Calls on Congress to Fix PRA Loopholes, FOIA Discredits Eric Trump’s Claim that Secret Service Stays at Trump Properties for Free, and More: FRINFORMSUM 2/21/2020

February 21, 2020

President Donald Trump meets with Ukrainian President Volodymyr Zelensky at the InterContinental Barclay New York hotel on Wednesday, Sept. 25, 2019. AP Photo/Evan Vucci

Court Rejects Archive Lawsuit over Trump’s Abuse of Records Law

U.S. District Judge Amy Berman Jackson made clear that her ruling in the Archive’s lawsuit seeking to compel the White House to preserve records “should not be interpreted to endorse” the White House’s records-keeping practices, “nor does it include any finding that the Executive Office is in compliance with its obligations.”

Judge Jackson dismissed the suit, brought by the Citizens for Responsibility and Ethics in Washington (CREW), together with the National Security Archive and the Society for Historians of American Foreign Relations, on the grounds that Circuit precedent finds that courts lack the authority to review the chief executive’s “day-to-day compliance” with the Presidential Records Act. Plaintiffs filed the suit in May 2019 on the heels of news reports that the Trump administration excluded note takers in multiple meetings with foreign heads of state.

As stated in her ruling, “the PRA gives neither the Archivist [of the United States] nor the Congress the authority to veto the President’s decision” to destroy records – or in this instance, fail to create the records in the first place. Jackson also makes clear that Congress must step in to address this outdated loophole, noting “it is Congress that has the power to revisit its decision to accord the executive such unfettered control or to clarify its intentions”. Read the ruling in its entirety here.

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FOIA Discredits Eric Trump’s Claim that Secret Service Stays at Trump Properties for Free

New documents obtained under the FOIA by the Washington Post help show how much money the Trump organization is charging taxpayers for the Secret Service to protect the president when he visits his properties – up to $650 per room per night. The organization has previously said it only charges the Secret Service minimal fees (Eric Trump said, “If my father travels, they stay at our properties for free – meaning, like, cost for housekeeping”), but the FOIA releases discredit that argument. The Post obtained 103 payments from 2017 and 2018 showing the Trump Organization charged the agency between $650 to $396; the Service was once charged $17,000 a month to use a three-bedroom cottage at Trump’s Bedminster Golf Club in New Jersey. The 103 payments total $471,000, but the Post notes that it’s impossible to tell the true extent of what the Secret Service has spent at Trump properties, because the agency “has not listed them in public databases of federal spending, as is usually required for payments over $10,000.”

The CX-52 provided by Brazil to Operation Condor members in 1976, is the type of ciphering machine Crypto AG submitted to NSA for testing.

Crypto AG – from Cyber to Condor

The Washington Post’s bombshell exposé on Crypto AG – “The intelligence coup of the century” – is relevant to both the Archive’s Southern Cone documentation and Cyber Vault projects.

Southern Cone

As the Post reports, the U.S. intelligence community actively monitored for decades the diplomatic and military communications of, among others, numerous Latin American nations through encryption machines supplied by a Swiss company that was secretly owned by the CIA and the German intelligence agency, BND. Declassified records recently posted and analyzed by the Archive’s Peter Kornbluh and Carlos Osorio show that, among those secretly surveilled countries, were military regimes of the Operation Condor nations—led by Chile, Argentina and Uruguay—as they conducted regional and international acts of repression and terrorism against leading opposition figures.

At the inaugural Condor meeting, hosted by the Pinochet regime in Santiago, Chile, in November 1975, military officials from five military dictatorships signed an accord which stated that member nations would employ a “Cryptology System that will be available to member countries within the next 30 days, with the understanding that it may be vulnerable; it will be replaced in the future with cryptographic machines to be selected by common agreement.” After the second Condor meeting in June 1976, the CIA reported, “Brazil agreed to provide gear for ‘Condortel’—the group’s communications network.” That “gear,” the documents reveal, came from Crypto AG.

The espionage operations through Crypto AG conceivably provided the U.S. intelligence community with a far more detailed knowledge of Condor operations than previously acknowledged. Indeed, the U.S. intelligence records generated by these espionage operations could be “a historical game changer,” according to Carlos Osorio, who directs the Southern Cone Documentation Project at the National Security Archive. “If declassified,” he noted, “this vast trove of communications intercepts could significantly advance the history of Operation Condor as well as contemporary history of the entire region.”

Cyber Vault

Crypto AG was founded in the 1930s by Swedish inventor Boris Hagelin, who already had a longstanding “gentlemen’s understanding” with the National Security Agency’s cryptographer and agency liaison, William Friedman. The Archive’s Cyber Vault published a curated selection of documents primarily from William Friedman’s collection which shed light on the years before Hagelin’s retirement and the level of cooperation between the two men.

Through the Freedom of Information Act, the National Security Archive is seeking the full declassification of the CIA’s secret case study on the “Minerva project” as well as the supporting documentation on the CIA/NSA ties to the Hagelin company.

Frank Anderson, 1942 – 2020

Frank Anderson, the CIA officer who served as head of the agency’s Afghanistan task force in the 1980s – supplying the mujahedeen with weapons to fight the Soviets – and oversaw a high-level informant – Ali Hassan Salameh –  within the Palestine Liberation Organization, has died.

Anderson was one of dozens of high-level officials interviewed during the National Security Archive’s and CNN’s 24-part, Peabody-award-winning documentary series, Cold War. His interview can be found here. (The rest of the interviews can be read here.)

Anderson retired from the agency after former director James Woolsey ordered his reassignment. Woolsey was furious that Anderson had given Milton Bearden (who was disgraced spy Aldrich Ames’ supervisor) an agency award for his outstanding work on Afghanistan – just one day after Woolsey had reprimanded Bearden for his conduct as Ames’ supervisor, and ordered Anderson’s reassignment. Anderson retired instead. He went on to serve as the president of the Middle East Policy Council, and was an outspoken critic of the agency’s torture program. As he wrote in the Miami Herald, “Mistreating detainees, even detainees who clearly deserve mistreatment, is ineffective, counterproductive, illegal and morally repugnant.”

Border Agency Gets OK to Hide Previously Public Info from FOIA, and Much More: FRINFORMSUM 2/6/2020

February 6, 2020

A Customs and Border Protection vehicle patrols the border fence in El Paso, Texas. (Jinitzail Hernández / CQ Roll Call via AP Images)

CBP Now A “Security Agency” With Broad FOIA Carve-Outs

The Trump administration has designated Customs and Border Protection (CBP) a “security agency”, a move that puts CBP in the same category as the Secret Service and the FBI, among others. And the new designation grants CBP increased leeway in withholding information from the public.

A January 31, 2020 memo from CBP Acting Commissioner Mark Morgan, which was obtained by The Nation’s Ken Klippenstein, states, “I am pleased to announce CBP has been designated as a Security Agency under Office of Personnel Management’s (OPM) official Data Release Policy, effective immediately. Previously, only frontline law enforcement, investigative, or intelligence positions held this designation. This policy change now protects all CBP employee names from subsequent responses to Freedom of Information Act requests or other public disclosures for CGP employee data.”

An anonymous CBP contractor provided the memo to Klippenstein, noting “Designating all of CBP a Security Agency exempt from OPM’s disclosure policy is simply absurd. There’s no need for the average CBP employee to have their name and position redacted from FOIA requests. This is another example of the current administration making it even more difficult to obtain pertinent information via official channels and claiming it’s related to security in some way.”

The motivation for the policy shift is equally irrational; the agency took issue with a Twitter account that was posting employee salary information – information that had long been publicly available through both Office of Personnel Management salary databases and the internet.

Another interesting tidbit from the article: Immigration and Customs Enforcement was assigned “at least one” detailee from the National Security Agency, begging the question why ICE needs input from the spy agency in the first place?

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New OIP Director Named

The Department of Justice’s Office of Information Policy, which is in charge of “encouraging” government-wide FOIA compliance – an important step short of actually enforcing the law, officially has a new director – Bobak Talebian. Talebian has been the acting director since Melanie Pustay retired in October 2019.

Under Pustay, OIP regularly published misleading FOIA statistics and provided an incomplete view of FOIA processing to both Congress and the public. In a prime example, the office’s annual summary of agencies’ FOIA reports regularly touted FOIA release rates of well over 90 percent across the government, a laughable claim. OIP arrived at this figure by excluding FOIA requests agencies denied by: overcharging fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits);  issuing a “no records” response (very frequently the result of inadequate searches); and requests deemed “improper for other reasons” (which ostensibly includes the increasingly-common “can neither confirm nor deny” Glomar exemption). A more accurate release rate calculated by the National Security Archive and others hovers between 50 and 60 percent.

Over the years, Pustay doggedly refused to acknowledge FOIA’s systemic problems, agencies’ hostility to complying with FOIA, or her office’s unwillingness to take agencies to task for not following the law. In 2015, Pustay was accused by the former chair of the House Committee on Government Oversight and Reform, Rep. Jason Chaffetz (R-Utah), of living in “la-la-land” for testifying that she believed 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.”

Talebian could, if he chooses, takes steps to restore the requester community’s faith in the office. One way would be to publish a more accurate assessment of FOIA for this year’s OIP summary of agency FOIA reports. Another promising sign would be asking the Attorney General to direct all DOJ litigating divisions to undertake a “litigation review” of pending and future FOIA lawsuits (the last time this was done was 1993). These changes would help allay fears that OIP will continue to write agencies a blank check for underperforming on FOIA.

Hurricane Dorian’s SharpieGate Map: “Yes, that was doctored”

BuzzFeed News’ Zahra Hirji and Jason Leopold won FOIA-released documents from the National Oceanic and Atmospheric Administration showing the internal fallout within the NOAA and the National Weather Service after President Trump falsely claimed in September 2019 that Alabama was one of the southern states “most likely to be hit” by Hurricane Dorian. Trump promoted a doctored map with a sharpie bubble drawn on top of the official prediction that showed the storm moving towards Alabama. A forecaster attempted to correct the error, and the NOAA inexplicably took the President’s side over its own climate scientist in an anonymous memo. The released emails show that scientists, “both inside and outside the government, were horrified”, and were concerned about the impact the event would have on morale and the possibility of retaliation against scientists who contradict the president.

Starting to Crack a Hard Target: U.S. Intelligence Efforts Against the Soviet Missile Program through 1957

In the eyes of U.S. intelligence and the military services, the greatest threat to American national security during the early Cold War was the emerging Soviet missile program with its ability to deliver nuclear weapons to targets across the United States. Before the era of satellite surveillance, the U.S. scrambled to develop ever more effective intelligence-gathering methods, notably the U-2 spy plane, spurred on by having missed practically every important Soviet breakthrough of the time – including the first intercontinental ballistic missile tests and the world-changing Sputnik launches.

Early U.S. monitoring of Soviet missile activities is an important part of the history of nuclear weapons and even has parallels to the challenges faced today in tracking the programs of adversary states such as North Korea and Iran. Unfortunately, most of the record, even six or seven decades later, remains highly classified.

However, working with declassified materials from CIA and other sources, James E. David, curator of national security space programs at the Smithsonian National Air & Space Museum, has pieced together a fascinating part of the story of the U.S. missile-tracking effort up to 1957. David’s last E-Book for the Archive described American spying on Communist military parades during the Cold War. Read it here.

Work of 4th Soviet Spy at Los Alamos Revealed

Documents recently declassified by Los Alamos laboratory shed new light on a Soviet spy, code named Godsend, who worked in the atomic bomb program. Historians revealed the existence of Godsend, whose real name was Oscar Seborer and is the fourth known Soviet in the US’s Manhattan Project, last year – but the extent of his role was unknown until the Los Alamos release. The new release shows Seborer “had an intimate understanding of the bomb’s inner workings. His knowledge most likely surpassed that of the three previously known Soviet spies at Los Alamos, and played a crucial role in Moscow’s ability to quickly replicate the complex device.” Specifically, Seborer was employed by the X-5 unit and worked on the firing circuits for the bomb’s 32 detonators.

ICYMI: Why You May Never Learn the Truth About ICE

Check out Dr. Matthew Connelly’s New York Times op-ed, “Why You May Never Learn the Truth About ICE”, if you haven’t yet. The article begins by examining some of the National Archives and Records Administrations most notable recent flubs – including doctoring a photo of the 2017 Women’s March on Washington, and tentatively approving a records retention schedule that would have allowed ICE to designate as temporary – and then destroy – “documents detailing the sexual abuse and death of undocumented immigrants.” Public outcry compelled the Archivist of the United States, David Ferriero, to tell the agency to revise its schedule, but the new one, which was formally approved, still allows ICE to destroy records concerning “detainees’ complaints about civil rights violations and shoddy medical care.”

NARA is certainly understaffed and underfunded, and Dr. Connelly points out that, adjusted for inflation, Congress has cut NARA’s budget every year for the last three years. But resources are not the only roadblock; the article raises existential questions about what archival efforts should look like in the digital age, and how do archives responsibly manage the transition? For example, what will happen to historic paper records – the CIA alone has over 150 million pages of them – when NARA stops accepting paper records in two years? And what does the future of the presidential library system look like now that NARA will no longer maintain it? The questions are of the utmost importance, but the answers are worryingly vague.