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FOIA Federal Advisory Committee Recs Will Help Agency FOIA Shops Pass “Common-Sense Test”: FRINFORMSUM 4/19/2018

April 19, 2018

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

FOIA Federal Advisory Committee Recs Will Help Agency FOIA Shops Pass “Common-Sense Test”

An incredulous Senator Chuck Grassley told the Justice Department Office of Information Policy’s Melanie Pustay this Sunshine Week that her defenses of lackluster government-wide FOIA performance didn’t pass “the common-sense test.” OIP’s support of agencies who claimed 508 compliance concerns were a valid reason for agencies to hesitate posting documents online – or, worse yet, an excuse to remove documents currently published on government websites – was one such “common-sense test” failure for Grassley and Senator Patrick Leahy.

At their most recent meeting the FOIA Advisory Committee took the first tangible step to help agencies navigate 508 compliance concerns. The committee approved 37 recommendation, including encouraging agencies on 508 to, instead of either not posting documents or even removing previously posted documents, “remediate documents that are not currently 508 compliant” and “ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”  The Committee also recommended that agencies familiarize themselves with the Rehabilitation Act’s “undue burden provision” that allows agencies to post electronic documents that are not Section 508 compliant if rendering them compliant would “impose an undue burden” on the agency.

The committee’s other recommendations include “expanding the use of tracking records, allocating resources for agency IT experts to work with FOIA officials for electronic searches, creating rotational career programs to get younger employees into FOIA, plus using interns or temporary staff for time-consuming tasks such as data entry.”

Border Wall Contractors Under Scrutiny thanks to FOIA Work

A Project on Government Oversight investigation, informed in part by FOIA-released records, show that half of the contractors that built border wall prototypes had shaky track records, including one that the Army Corps of Engineers felt in 2014 “was too risky to do future business with.” The contractor, Caddell Construction, was investigated by the Army for defrauding the government across multiple contracts. The Corps recommended that the Army’s Procurement Fraud division debar Caddell.

The border wall contracting process was also the subject of a separate USA Today FOIA investigation, which in 2017 shed light on the “unusually confusing and haphazard process” of contractors bidding to build border wall prototypes. Nearly 200 pages of Customs and Border Protection (CBP) documents revealed communications with companies seeking clarity on a rushed, murky bidding process that initially only gave companies 12 days to submit proposals for 30-foot high prototypes that could lead to a $300-million five-year contract.

Scott Pruitt has 4 EPA Emails – 3 Don’t Follow the EPA’s Conventional Format

The chair of the Senate Environment and Public Works Committee, John Barrasso, is looking into Environmental Protection Agency head Scott Pruitt’s use of four government email addresses. The multiple emails – “three of which do not follow EPA’s conventional format” – raise concerns that the emails are not being properly searched in response to FOIA requests. A spokesperson for Pruitt insists that all emails are searched in response to FOIA.

Read about Pruitt’s other FOIA woes here.

DOD Secrecy Goes Beyond Limiting Access to the Media

Rep. Mike Gallagher (R-WI) recently noted at a House Armed Services Committee hearing that while transparency is “needed now more than ever,” there have been multiple instances in the last few months “where the [military] services have sought to be more guarded in their transparency and accessibility to the media.” DOD Secretary Jim Mattis hedged on the issue, saying that while he wants continued engagement with the media, he doesn’t want officials speaking on the condition of anonymity, further saying “What I don’t want is pre-decisional information, or classified information or any information about upcoming military movements or operations, which is the normal lose lips sink ships kind of restriction.”

The secrecy, however, goes beyond withholding pre-decisional information and speaking less frequently with the media. Steve Aftergood highlights that “Last week, for example, DoD published its regular quarterly report for December 2017 on the number of US troops deployed abroad — but now with the number of troops in Iraq, Syria and Afghanistan deleted.”

US Yet to Release Docs on Ayotzinapa Forced Disappearances

A new report sheds light on the forced disappearance of a group of 43 students from Ayotzinapa, Guerrero in 2014. The report, published in the Mexican newspaper Reforma and by Kate Doyle in a recent blog post, “describes a series of text messages sent in the hours and days following the students’ disappearance between Mexican drug traffickers based in Chicago and their criminal partners operating inside Mexico. US drug enforcement agents obtained the messages through electronic intercepts during a 15-month narcotics investigation in northern Illinois and subsequently provided them to the Mexican government.”

The National Security Archive and Doyle have filed dozens of FOIA requests for records relating to the forced disappearance, but the U.S. government has yet to declassify any relevant records.

John Moss

John Moss’s Transparency Legacy

The Archive’s FOIA Project director Nate Jones and Michael R. Lemov, former Commerce Committee counsel for Congressman John Moss, recently joined forces to pen an excellent retrospective on FOIA’s founding father, John Moss, and the worldwide implications of the US’s landmark transparency law. The article originally appeared in the Southwestern Journal of International Law, Volume 24.

Cyber Brief: FBI and the San Bernardino iPhone, Cyber News

This week’s Cyber Brief highlights the March 2018 report from the DOJ Inspector General on the FBI’s statements on its ability to break into the iPhone of Syed Rizwan Farook, one of the attackers killed in the San Bernardino terrorist attack. This report was issued in response to allegations that the Operational Technology Division in fact had acquired the capability to unlock the iPhone but did not use it in order to support planned Congressional testimony on the encryption debate. The OIG report found, however, that the Operational Technology Division did not have the capability at the time of the Congressional testimony in question.

Steve Aftergood has an interesting article on the National Security Agency’s declassification of a redacted version of the table of contents of the first three volumes of the classified journal on cybersecurity, the Journal of Sensitive Cyber Research and Engineering (JSCoRE). Aftergood notes, “one title that NSA withheld from release under FOIA was publicly cited in a Government Accountability Office report last year:  ‘The Darkness of Things: Anticipating Obstacles to Intelligence Community Realization of the Internet of Things Opportunity,’ JSCoRE, vol. 3, no. 1 (2015)(TS//SI//NF).”

Talking points written by Libby for White House Press Secretary Scott McClellan.

TBT Pick – The Scooter Libby File

This week’s #TBT pick is chosen with Donald Trump’s recent pardoning of former Vice President’s Chief of Staff, Scooter Libby, who was convicted on four counts for his involvement in the leaking of the covert identity of CIA officer Valerie Plame Wilson, in mind. This week’s pick is a 2007 posting of The Scooter Libby File, which examines the declassified documents introduced as evidence during the Libby trial provide an almost unprecedented window into Mr. Cheney’s own role as the most powerful vice president in history. The Archive’s director Tom Blanton discussed the documents and their historical context with NPR’s Morning Edition.

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John Moss and the Roots of the Freedom of Information Act: Worldwide Implications

April 17, 2018

By Michael R. Lemov* & Nate Jones**

This article originally appeared in the Southwestern Journal of International Law, Volume 24.


John Moss

John Moss was an obscure Congressman from a newly created district in northern California when he arrived in Washington D.C. in 1953.1 He had survived a razor-thin general election victory (by about 700 votes), which included unfounded charges of being a communist, or a communist sympathizer.2 Those charges became an important force behind Moss’s long battle to enact the Freedom of Information Act.

Except for an 18th century Swedish law and a similar information law in Finland in 1951, the U.S. Freedom of Information Act (“FOIA”) was the first open government law in the world.3 During the twelve years it took John Moss to win enough Congressional votes to pass the bill, he endured intense political opposition, faced a veto threat from a president of his own party, and overcame fierce opposition from executive branch agencies.4

When President Lyndon Johnson signed the Freedom of Information Act into law on July 4, 1966, Moss did not receive a pen from the president, nor was there any signing ceremony.5

Since 1966, more than 117 nations have passed government information laws.6 Congress has amended and refined significant sections of the U.S. law several times, generally improving access in areas where Moss had to compromise in order to win its original passage.


When Moss first arrived in Washington, D.C. there was a poisonous political atmosphere in the city.7 Senator Joseph McCarthy was riding anti-communist fears that he helped arouse and that propelled him to great influence in the U.S. Senate and in the nation.8 The House Un-American Activities Committee was making headlines, with its endless investigations of security risks, Russian spies, and alleged disloyalty in dozens of government agencies and American industries.9

President Harry Truman issued an Executive Order establishing an administration Loyalty Program.10 It directed Truman’s attorney general to compile a list of communist organizations and “front” organizations and to investigate the loyalty of federal government employees.11 Based on the results of these investigations, the targets could be fired from their government jobs, prosecuted, and made virtually unemployable.12 They faced public condemnation and personal humiliation in the process. People investigated under the Loyalty Program were not allowed to confront their accusers or see the charges against them, often based on hearsay evidence that was held in secret files compiled by the Federal Bureau of Investigation.13

United States Court of Appeals Judge Henry Edgerton wrote an opinion concerning the firing of one such government employee: “Without trial by jury, without evidence, and without even being allowed to confront her accusers or to know their identity, a citizen of the United States has been found disloyal to the government of the United States.”14 Edgerton found the discharge proceedings to have been unconstitutional.15 “Whatever her actual thoughts may have been,” he wrote, “to oust her as disloyal without trial is to pay too much for protection against any harm that could possibly be done.”116

Edgerton was the lone dissenter on the federal Court of Appeals. The court affirmed the employee’s firing from government service.17 The United States Supreme Court divided evenly in reviewing the case, four to four, thus upholding the legality of the Truman Loyalty Program and its attendant government secrecy.18

Moss knew about the McCarthy approach, having been a target of similar charges in his California campaigns for both the state assembly in 1949 and, in 1953, for Congress.19 He survived the attacks. He did not forget them. His long campaign to secure freedom of information was grounded, in part, on his anger at being faced with such potentially devastating charges based on unsubstantiated claims against him.

Moss’s information battle was also based, coincidentally, on his assignment to a very obscure congressional committee that had legislative responsibility only for federal civil service and post office employees.20

When he took his seat in Congress in January 1953 representing California’s new Third Congressional District, there was no evidence that limiting government secrecy and providing the public and the press with access to government records would be causes he would champion for twelve long years—and in fact, for the rest of his life.21 Perhaps because of Moss’s independent views on several such issues, he later said, “By all that was holy, I was destined to be a onetermer.”22

Read more…

Transcripts of intercepted cell phones open new lines of investigation in Ayotzinapa case

April 16, 2018

Reforma front page

Mexican investigators have obtained dramatic new leads on the 2014 forced disappearance of a group of 43 students from Ayotzinapa, Guerrero, according to an article in the Mexican newspaper Reforma.

The report, published April 12, describes a series of text messages sent in the hours and days following the students’ disappearance between Mexican drug traffickers based in Chicago and their criminal partners operating inside Mexico. US drug enforcement agents obtained the messages through electronic intercepts during a 15-month narcotics investigation in northern Illinois and subsequently provided them to the Mexican government.

According to the article, the Blackberry chats sent by members of the criminal gang Guerreros Unidos (United Warriors) in Chicago – where they ran a drug distribution ring – revealed they were issuing orders and monitoring developments shortly after fellow gang members in Iguala, Guerrero, joined local police to attack the students on the night of September 26 and morning of September 27, 2014.  The messages contain new details about the events, including the names of gang members involved, the demands of the Chicago bosses that municipal police from neighboring towns participate, and their orders that the Guerrero prosecutor and other state officials intervene to support them.

The texts do not reveal the fate or whereabouts of the missing students.

When the students were abducted, the crime sparked outrage and grief around the world. At the time, the young men had left their rural school for teachers in Ayotzinapa and were traveling in buses to Mexico City to take part in an annual demonstration commemorating the 1968 student massacre in Tlatelolco. As the buses passed through the town of Iguala, local police and Guerreros Unidos gang members stopped the vehicles and savagely attacked the students. At least six people were killed during the melee and 43 young men were forcibly taken away.

Since then, the families of the students, their lawyers, and national and international human rights groups have demanded the return of the missing men and the arrest of the perpetrators. But from the very beginning, the government of President Enrique Peña Nieto appeared unable or unwilling to mount a serious investigation. His attorney general’s botched theory of the case, along with evidence of possible government complicity in the crime, led in 2015 to the appointment by the Inter-American Commission on Human Rights of five international experts to assist in the inquiry and provide support and liaison to the families.

Interdisciplinary Group of Independent Experts (GIEI)

It was the Interdisciplinary Group of Independent Experts (GIEI, by its Spanish acronym) that discovered the existence of the 2014 indictments against Guerreros Unidos members in Chicago. The experts obtained the complaint affidavit filed with the Office of the US Attorney in the Northern District of Illinois, which contained clues about what might have happened in Iguala to provoke such a savage attack on the students. According to the complaint, the US-based gang members used commercial passenger buses to smuggle cocaine and heroin into the United States and ferry their cash proceeds back to Mexico, using special compartments they built to hide them. The buses came from the state of Guerrero.

The experts theorized that the students may have inadvertently taken one the buses used by the traffickers to conceal and move their drugs. In their first progress report, issued in September 2015, GIEI recommended that Mexico request the transcripts of cell phones listed in the complaint that were active on or around September 26-27, 2014. But according to the group’s second and final report (April 2016), Mexico fumbled the request to the United States at least twice, delaying the process in a way the group called “incomprehensible.”

GIEI’s first progress report.

Thus the appearance of the cell phone messages two and half years after GIEI’s report serves as the very delayed response by President Enrique Peña Nieto’s government to their recommendation.

Some of the messages contain fleeting but vivid references to the students in coded language. On the afternoon of September 27, a trafficker known only by his alias, “Silver,” received a report from someone called “Aníbal”: “It’s just that they’re hauling 60 packets [a reference to detained-disappeared persons] under guard and others among them are with San Pedro [dead], and on this side there are only wounded…

The text is striking because it directly contradicts a key element of Mexico’s flawed theory of the case. The government has always contended – and continues to maintain, despite overwhelming evidence to the contrary – that after being pulled off the buses, the students were taken to a garbage dump in nearby Cocula town in the early morning hours of September 27, where they were killed immediately, their bodies burned to ash and bone in a great conflagration. GIEI, the Argentine Forensic Anthropology Team, and international fire experts have refuted the government’s assertion. The newly released text indicates the students were still alive in the afternoon of September 27, hours after the government claims they had been executed.

Reforma’s article – based on access to the transcripts given to reporter Roberto Zamarripa (presumably by the Mexican government) – describes the violence against the students as the result of a mistaken belief on the part of the local Guerreros Unidos that the buses carried members of a rival gang called Los Rojos, which sought to seize control of Iguala and its lucrative drug trade by force. In one text, “Silver” orders his Iguala counterpart to get help from state officials to “move against the vehicles.” A character identified as “Soldier of Love” responds from Mexico, “They’re gonna close off all the entrances [to the town].”

Some of the gang members chatting appeared to be taken aback by the magnitude of the incident. A week after the attack, Pablo Vega, one of the criminal leaders in Chicago, comments in a text to “Cobra” that there were “50 young guys disappeared.” “Cobra” replies: “Shit. So many …. But, where did they put them all? So many.”

Although the reported cell phone chats contain tantalizing leads that may be helpful in expanding the investigation, they leave many aspects of the case still unknown and unexplained. For example, they do not appear to reference the Mexican military or the federal police, both of which were present that night and played roles in monitoring the students as they traveled in the buses toward Iguala, communicating with each other and with local police about their progress, and observing the violent events of that night and the following morning without intervening.

In a press release published after the article, human rights organizations – including Centro Prodh, whose lawyers represent the families of the missing students, and the Guerrero-based Tlachinollan – called on the government to exploit the new information to revive its investigation into the case. The groups also highlighted what they considered to be some of the most important revelations raised by the texts.

First, the messages make clear that far from being a provincial criminal gang, Guerreros Unidos had international reach, shipping cocaine and heroin from southern Mexico to a major city in the northern United States. That new perspective on the group’s operations complicates Mexico’s characterization of the attack as a limited, local struggle and raises the possibility that the violence that night may have reverberated well beyond Guerrero and had broader impact for the gang and its corrupt government allies.

Second, the reported texts put an end to the suggestion – made by some commentators and government officials – that the students were “infiltrated” by narcos (thereby bringing their grief upon themselves). There are several points in the chats, as reported by Reforma, where Chicago gang members express surprise and disapproval (because it will be bad for business) that the students were targeted. Nowhere do they link the missing young men with their own criminal activities.

In Mexico, the government’s credibility on the Ayotzinapa case was shattered long ago. As the group of experts documented in their second and final report, the Peña Nieto investigation into what happened to the 43 students has been marred by dishonesty, delay, and the destruction of evidence. Mexico should use the intercepted phone messages to steer the course of its investigation into more credible waters, immediately.

From NSArchive: Prelude to Iguala

The United States also has a role to play. Although the National Security Archive has filed dozens of Freedom of Information Act request on the Ayotzinapa case, the US government has yet to declassify and release the relevant records. Our attempts to clarify exactly when the United States released the Chicago transcripts to Mexico and in what form have also gone unanswered.

Beyond declassifying documents that might shed light on the events, the US government could support the case by providing investigators with additional information about the operations of Guerreros Unidos in the United States. If the tragedy in Iguala is understood within the context of transnational criminal operations and widespread corruption in Mexico (instead of as a local, limited accident of mistaken identity), perhaps the scope of the investigation will open wide enough to get to the bottom of what happened – and clarify why the Mexican government has been so determined to cover it up.

Weeks after the students disappeared, as the government swept up dozens of gang members and police suspected of participating in the attack, Pablo Vega in Chicago lamented in a message to someone called “Spider Woman,” “As long as the guys are missing, they [the arrests] will continue.

“Spider Woman” replied: “It would be so easy just to say where they are.” 

FOIA Investigation Reveals Steep Rise in Military Aviation Crashes: FRINFORMSUM 4/12/2018

April 12, 2018

The Military Times database draws from over 7,500 records.

FOIA Shows Steep Rise in Military Aviation Crashes

A six-month Military Times FOIA investigation shows an alarming trend – accident rates are soaring among the military’s manned warplanes. Specifically, the Times found “that accidents involving all of the military’s manned fighter, bomber, helicopter and cargo warplanes rose nearly 40 percent from fiscal years 2013 to 2017. It’s doubled for some aircraft, like the Navy and Marine Corps’ F/A-18 Hornets and Super Hornets.” At least 133 service members have died as a result of those accidents. The Times links the rising accident rates in part to 2013 budget cuts and non-stop deployments.

The Military Times published its crash database here. The FOIA’s were sent to the Naval Safety Center, the Air Force Safety Center, and the Army Combat Readiness Center.

Post Office Pulls Long-Published Lease Information from Website

The United States Post Office has stopped publishing a report listing how much it pays for rent for its thousands of facilities across the country. The information was “a valuable index that real estate brokers and others used to judge the value of business properties” and allowed the public to judge if the agency effectively managed public funds for the country’s 31,500 post offices. A post office spokesperson, Kimberly Frum, argued that, because of a special exemption Congress granted the Postal Service, the agency “determined that most of the leasing information previously provided in the Report clearly falls within the scope of that exemption, because it is not good business practice to voluntarily disclose this information.”

Scott Pruitt’s Superfund Secrecy

A FOIA lawsuit recently filed in the U.S. District Court for the District of Columbia argues that Environmental Protection Agency chief Scott Pruitt and his associates “tried to hide evidence of possible criminal activity at a Superfund site in Oklahoma.” The suit seeks records on the Tar Creek Superfund site, one of the most polluted in the country, and alleges that Pruitt “would not pursue criminal charges after a 2014 report from the state auditor showed criminal wrongdoing within the government program”

In 2011 Pruitt, then the Oklahoma Attorney General, prompted by former U.S. Senator Tom Coburn, asked the state auditor Gary Jones to investigate Tar Creek. The state auditor delivered the report in 2014 that detailed an “alleged conspiracy against the state involving public officials” at the Oklahoma Department of Central Services. Then Pruitt, “in a move likely unprecedented in Oklahoma history, ordered Jones to not release the audit publicly.” Jones “vehemently disagreed” with Pruitt’s decision.

Pruitt forbade the state auditor from releasing the report. But in 2014 he did share it with the lead attorney for the Lead-Impacted Communities Relocation Assistance Trust, which was buying homes in towns contaminated by Tar Creek. The attorney, Andy Lester, then determined from the audit – contrary to the findings of the state investigators – that there was no evidence to support the fraud allegations and that the audit “has no basis in fact and is not well-founded.” Lester shared the audit with LICRAT’s board.

The Oklahoman’s Justin Wingerter has been doggedly following this story.

Pruitt’s Phantom Death Threats?

An EPA FOIA response to Buzzfeed’s Jason Leopold’s FOIA request for records about death threats against Scott Pruitt contradicts Pruitt’s claims that he needs an extensive, round-the-clock security detail because of numerous death threats he has received. Pruitt and EPA spokespeople have used the claim of “unprecedented” death threats to justify a 19-person, 19-vehicle security detail that costs $2 million a year.

The EPA, however, told Leopold that it had no records on the matter. And while it’s not uncommon for an agency to claim a no-records response when there are in fact responsive records, it begs the question why Pruitt’s detail needs to be three times larger than his predecessors.

Trump Hotel Handbook

Property of the People recently won the release of the Trump International Hotel Las Vegas employee handbook thanks to a FOIA request to the National Labor Relations Board. The handbook discourages, for example, the hiring of family members for top positions, and bars relatives from working under the direct or indirect supervision of another relative.

The manual also includes two provisions that employment attorneys say “could run afoul of federal law”: barring male employees from having visible tattoos with some exceptions and barring all female employees from visible tattoos, and banning male employees from braiding their hair – potentially raising “concerns about racial discrimination” towards black men with braids or dreads.

CIA Debriefed Soviet H-Bomb Eye-Witness in 1957

Secret CIA interviews with defectors, former German POWs, and previously detained German scientists and technicians in the mid-1950s yielded invaluable insights into Soviet nuclear capabilities, according to recently declassified intelligence records posted by the National Security Archive.

One riveting account came from an eye-witness to a late 1955 nuclear blast near Semipalatinsk, which analysts subsequently concluded was the first Soviet test of a two-stage thermonuclear device – developed by the so-called father of the Soviet hydrogen bomb, Andrei Sakharov.

The latest posting from our Nuclear Vault highlights several reports of interviews with well-placed sources, some of whom were targeted by a joint British-American intelligence activity code-named Operation DRAGON, aimed at persuading key figures to defect to the West.

Cyber Brief: Interplay between the land, space, and cyberspace domains

Omnipresent in discussions of military use of cyber is how cyberspace fits in with the other warfighting “domains” of land, air, sea, and space. This question is vital to several issues facing future security and force planners including military command and control doctrine and the possibility of deterring aggression in one domain with the promise of punitive measures in another (cross-domain deterrence). Today’s Cyber Brief posting features a recent report published by the United States Army War College Strategic Studies Institute on the interplay between the land, space, and cyberspace domains, and includes selections from the significant volume of US Government publications the report references. This report, and the literature it draws on, provides a deep profile of cyber’s importance to the future “joint force”.

Argentina Declassified

The Archive’s Southern Cone project director, Carlos Osorio, joined an expert panel last week at the George Washington University’s Elliott School of International Affairs for a discussion on “Argentina Declassified: The Release of U.S. Government Records on the Last Military Dictatorship.” Osorio was joined by State Department historian Sara Berndt and Wilson Center Public Policy Fellow Benjamin Gedan; the event was introduced the Ambassador of Argentina to the United States, Fernando Oris de Roa. If you missed the discussion, the video of the event can be accessed here.

TBT Pick – Who Killed Jaime Garzón?

This week’s TBT pick comes from the Archive’s Colombia project and is a 2011 posting on the assassination of beloved Colombian journalist and political satirist Jaime Garzón. The posting published, for the first time, a-declassified State Department cable supporting longstanding allegations that Colombian military officials ordered the killing.

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Judge Finds No Legal Basis for Commerce’s Exorbitant FOIA Fees, Declassified US Docs on Rios Montt, and More: FRINFOMRUSM 4/5/2018

April 5, 2018

AP photo/Nick Ut

Judge Finds No Legal Basis for Commerce Dept. Attempt to Charge Hundreds of Thousands for Two Data Sets

A federal judge has ruled against the Commerce Department and in favor of reporter David Yanofsky in a FOIA lawsuit targeting the agency’s attempt to charge exorbitant FOIA fees. Specifically, the court found no legal basis for Commerce’s attempt to charge nearly $174K for access to government immigration data and ordered the agency to re-evaluate the fees; Yanofsky says the fees now “will likely cost me less than $30—possibly even nothing at all.”

For years the Commerce Department maintained that Yanofsky had to pay $173,775 for two databases because “it only gives that information to people and companies that pay for the privilege.” The databases are the only comprehensive records on who enters the US; one database is on anonymous immigration records and the other statistics about international air travelers. Yanofsky says “a representative for the International Trade Administration initially told him that the DOC bureau ‘did not want to release the records to [him] because it wanted to protect the revenue the data generated.’” Yanofksy correctly argues, however, that “Just because there may be a market for this information shouldn’t make it exempt from public disclosure.”

New York Court of Appeals OK’s NYPD Glomar

The New York state Court of Appeals has upheld a lower court ruling that the New York Police Department can invoke a Glomar response to requests from citizens wanting to learn if they were the subject of NYPD surveillance. In the original ruling, which was “the first time New York courts have considered the Glomar doctrine, which isn’t established in the statutory language of the FOIL or previous state caselaw,” the court found that because of the “heightened law enforcement and public safety concerns identified in the affidavits of NYPD’s intelligence chief, Glomar responses were appropriate here.” The appeals court agreed.

Prior to the NYPD’s usage, the Glomar response, in which the government says it can neither confirm or deny it has the records in question, has only been invoked by the federal government – and then primarily by intelligence agencies in cases that concern national intelligence information.

The New York Appeals Court ruling is troubling because Glomars are considerably more difficult to appeal than a regular FOIA denial, and it paves the way for other local law enforcement agencies to invoke the secrecy-catch-all.

If you are curious about the history of the Glomar response – named after the CIA’s six-year attempt to salvage a Soviet nuclear submarine from the bottom of the Pacific during the height of the Cold War – check out Nate Jones’ blog on history of the operation and how it became public.

Ríos Montt leaves the Guatemalan tribunal, where he is being tried on genocide charges. (Photo credit: Daniel Hernández-Salazar)

Ex-Guatemalan Dictator Efraín Ríos Montt Has Died – Declassified Documents Describe Brutal Tactics

Recently-deceased Guatemalan dictator Ríos Montt’s decision to purge and reorganize the military in the 1980s prepared the armed forces for what would become the most intensive phase of the counterinsurgency in the conflict’s twenty-year history. Under Rios Montt the army’s strategists began to plan the scorched earth operations that would decimate the Mayan regions of the country in the months to come.

Some of the contemporaneous US records noted:

  • “The army intended to act with two sets of rules, one to protect and respect the rights of average citizens who lived in secure areas (mostly in the cities) and had nothing to do with subversion. The second set of rules would be applied to the areas where subversion was prevalent. In these areas (‘war zones’) the rules of unconventional warfare would apply. … Guerrillas would be destroyed by fire and their infrastructure eradicated by social welfare programs.”
  • In a report dated May 23, 1983, the CIA pointed out that “The insurgency has already forced the military, the strongest institution in Guatemala, to acknowledge that long-ignored sections of the country like the Western Highlands are exploitable political power bases.”
  • That same month, the US Embassy declared that the Junta “has announced a pacification campaign based on the two F’s, ‘Fusilesand Frijoles (Rifles and Beans).’ It has announced instructions to the security forces to ‘protect campesinos, not repress them.’ It has arranged mass demonstrations of civilian militiamen in the war torn ‘Ixil Triangle’ of Quiché, and provides food and medical aid to Quiché refugees… The Junta has clearly embarked on a campaign to win the hearts and minds of the campesinos, and probably to improve the GOG’s international image.”

Learn more about his scorched earth counterinsurgency campaign and 2013 indictment for crimes against humanity on our Guatemala Project page.

Why We File

To celebrate Sunshine Week 2018, the National Security Archive’s FOIA Project director Nate Jones talks to the Export Import Bank about the Freedom of Information Act from a requester’s perspective.  Watch the video here.

MLK in 1963. AFP.

TBT Pick – “Disreputable if Not Outright Illegal”

This week’s #TBT pick is a 2013 posting highlighting a declassified NSA history that divulges the name of prominent Americans surveilled during the Vietnam era – including Martin Luther King, Jr. King’s status as an NSA target was previously speculated, but the NSA declassification is the first time it was officially declassified. The multi-volume study, American Cryptology during the Cold War, also reveals:

  • An August 1961 intercept provided advance warning information of the East German decision to close the intra-Berlin borders, the action that led to the Berlin Wall.
  • Weeks before the Cuban Missile Crisis occurred, the NSA detected that the Soviets put military forces on higher alert and stood down their strategic bomber fleet. Apparently Moscow was worried that the United States had discovered the missile deployments.
  • NSA wiretaps on Panama’s president Omar Torrijos during the 1970s may have given U.S. diplomats an advantage in the negotiations that produced the Panama Canal Treaty.

Read more here.

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Why We File: Perspectives from a FOIA Requester

April 4, 2018

To celebrate Sunshine Week 2018, the National Security Archive’s FOIA Project director Nate Jones talks to the Export Import Bank about the Freedom of Information Act from a requester’s perspective.  Watch the video below:

NARA Unauthorized Destruction Chart Highlights Troubling Pattern of Disappearing Records and Encrypted Messaging Apps: FRINFORMSUM 3/29/2018

March 29, 2018

NARA Publishes First Unauthorized Destruction Chart

This week the U.S. National Archives published its first “unauthorized disposition of federal records” chart. The chart – which includes both open and closed cases and will be updated monthly –  catalogs all of the cases NARA investigated in Fiscal Year 2017 concerning the “actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records.” The chart includes NARA’s correspondences with the agencies when available.

A quick look shows that the departments of State, Interior, Agriculture, and Justice were the most frequently investigated agencies, and that disappearing records and encrypted messaging applications were a common theme. Some “highlights” from the chart are:

  • An investigation into the Environmental Protection Agency for allegedly using the “encryption messaging application, Signal, to achieve specific goals circumventing the government’s ability to monitor communication related to government business and to covertly avoid federal records requirements.”
  • An inquiry into the National Oceanic and Atmospheric Administration, which “may illegally be destroying records (electronic messages through Skype and Google Chat) of a recent meeting discussing new regulations against the fishing industry.”
  • A Department of Defense case concerning DoD IG employees Lynne Halbooks and Henry Shelley, who “are subjects of court investigation that they allegedly destroyed documents in DoD IG’s investigation of former NSA whistleblower Thomas Drake. In March 2016, the Office of Special Counsel referred the case to the DOJ where it remains under review.”

OGIS Empowerment Act A Common-Sense Improvement, Moves to Senate

The Office of Government Information Services Empowerment Act of 2018 was passed out of the House this week (H.R. 5253) and will hopefully be taken up by the Senate. The bill states that “Each agency shall make any record available to the Director of the Office of Government Information Services for purposes of carrying out this subsection, upon request of the Director.”

This amendment would address a current bureaucratic bottleneck OGIS faces – agency System of Records Notices (SORNs). Currently, as OGIS notes in its blog, “an agency is not allowed to routinely share a FOIA file with another agency unless it obtains the requester’s consent for a file to be shared or notifies the public by updating its PA Systems of Records Notice (SORN) to include routine-use language for OGIS.  If an agency has not published a Privacy Act SORN letting the public know that its files might be shared with us, we must first obtain written authorization from the requester before we can discuss his or her request with the agency.” This is a time-consuming process when a requester has sought out OGIS’s mediation services.  If taken up by the Senate and passed, the bill would also save agencies money because it wouldn’t require each individual agency update their SORN’s in the federal register to include OGIS language.

Congressman Could See How CRS Reports “would be in great demand by newspapers and women’s clubs, and so forth”

The Washington Post highlights the transparency win in the omnibus spending bill recently signed into law by President Trump – public access to Congressional Research Service reports. Trump’s signature lifted a 64-year-old ban that stemmed from concerns about the cost of making “photostatic” copies and that kept the CRS from sharing its research with the public – which has paid more than $100 million a year for the work. Of the initial ban on making CRS reports public Sen. Karl E. Mundt (R – S.D.) said, “I can see how that kind of analysis would be in great demand by newspapers and women’s clubs, and so forth, and unless put on some compensatory basis would run to quite an expenditure.”

The provision that frees the CRS reports was included in the recent spending bill thanks to the work of Senators Patrick Leahy (who “took advantage of his position as vice chairman of the Senate Appropriations Committee to slip the language into the legislation”) and John McCain and Representatives Mike Quigley and Leonard Lance.

CIA’s In-House Board Games Can Now be Yours Thanks to FOIA

The CIA has released the art, rules, and design documents for two board games – Kingpin: The Hunt for El Chapo and Collection Deck – it used at a South by Southwest event thanks to a FOIA request. Ars Technica reports that it is difficult to determine the precise rules for either game, nothing that Collection Deck’s rules are especially vague because the agency’s internal training cards “are marked up to an incredible degree, since they refer to a number of apparently classified intel-collection practices.”

The CIA is not new to board games – or toys in general. In 2014 a Washington Post article revealed that the agency had plans to make the scary doll – whose face was designed to frighten children and painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings” – and to distribute them in Afghanistan or Pakistan.

Judge Reinforces Government’s Sourcing ‘on Background’ in FOIA suit

U.S. District Judge Gregory Woods ruled in the government’s favor in a FOIA lawsuit trying “to shed light on the U.S. government’s anonymous press briefings.” In the 51-page ruling, Woods supported the State Department’s decision to withhold the names of officials in background briefings, finding “that public interest is insufficient to tip the scale in favor of disclosure.” The judge went on to note a “Second Circuit ruling that found Department of Defense employees especially have a vested interest in anonymity.”

The Archive’s John Prados Talks John Bolton and National Security

The National Security Archive’s John Prados recently discussed John Bolton, Mike Pompeo, Gina Haspel, and national security with Late Night Live on Australia National Radio. Check out the interesting interview here.

Key Targets for SAC Forces.

TBT Pick – U.S. Cold War Nuclear Target Lists Declassified for First Time

This week the Washington Post highlighted a top secret 1956 Strategic Air Command nuclear target list released to and published by the National Security Archive. The remarkable document – which includes planning targets, 200 in Moscow alone – was used to show that, in President Trump’s first year, the size of the US nuclear arsenal was the smallest it had been since the 1956 document was created.

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