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Judge Cites “Considerable Public Importance” in Khashoggi FOIA Case, Orders State to Process 5,000 Pages a Month: FRINFORMSUM 8/8/2019

August 8, 2019

Judge Orders State to Process 5,000 Pages a Month in Khashoggi Case – 4,358 Pages More than Average Monthly Schedule

Judge Paul Engelmayer for the Southern District Court of New York has ordered the State Department to process 5,000 pages of responsive documents a month in a FOIA lawsuit for records concerning the disappearance of Washington Post journalist and Saudi national, Jamal Khashoggi. The Judge, citing the “considerable public importance” of the request, also ordered the Defense Department to process 2,500 pages of responsive documents by the end of June, and 5,000 pages per month after that.

The opinion is notable considering most court-ordered schedules hover in the range of 300-500 pages a month; indeed, the State Department’s Information Programs and Services Director Eric Stein initially requested the Department only be compelled to produce 300 pages a month. In their respective declarations, both Stein and the Defense Department’s Associate Deputy General Counsel, Mark Herrington, argued that complying with the court order would negatively impact their offices’ ability to respond to other FOIA requests.

The State and Defense declarations provide some interesting insights. Stein’s declaration notes that:

  • The department is under court order to produce documents in more than 50 other cases;
  • Judge Engelmayer’s production schedule is the most “onerous” State has handled (the only comparable case being for Secretary Clinton’s emails);
  • There are “over 100 additional FOIA litigation cases that are in other stages of litigation and that require the same resources (for example, to compile Vaughn indices justifying redactions);”
  • and “In addition to the FOIA requests that are not in litigation, over 50 other FOIA requests in litigation are actively producing documents, including 12 other cases with court ordered production schedules. The average monthly production rate in those cases is 642 pages.” (emphasis added)

The Defense Declaration is shorter on quantitative data, but does state that the DOD’s Office of Information Council does not possess eDiscovery software and that each record must undergo a manual line-by-line review by OIC staff.

FOIA Council Recommends Standardizing FOIA Software

The Federal News Network’s Jory Heckman has a good piece on the latest Chief FOIA Officer Council’s meeting, available here. The highlight is the council’s subcommittee on technology’s recommendation of “adding commercial, off-the-shelf FOIA and records management software to the General Services Administration’s schedules program, giving agencies an opportunity to purchase these tools without having to shop around for the best deal.” The Veterans Health Administration’s Michael Sarich said the move, which is seen as a “stepping stone for greater adoption of artificial intelligence tools,” could be a “force multiplier” for reducing backlogs and growing numbers of FOIA requests.

Interior Copied FOIA Program Notes from Under-Performing Agencies

FOIA-released emails show that the Interior Department took advice from the FBI and the Environmental Protection Agency when crafting bad new FOIA regulations that allow the department to:

  • Preemptively reject what it defines as “unreasonably burdensome” requests;
  • Impose a monthly limit to the number of either pages or requests from a single requester the agency will process;
  • and a host of other changes that may make it more difficult to obtain fee waivers and expedited processing.

Rachel Spector, an official with Interior’s Office of the Solicitor who set up a meeting with the FBI’s FOIA unit, wrote to the FBI stating “I understand from my discussions with the US Attorney’s Office in D.C. that the FBI’s FOIA program and strategy in FOIA litigation is pretty much the ‘gold standard.’” (It isn’t.) Spector seemed especially interested in copying the FBI’s “500-page” per month policy, which caps document releases to 500 pages a month per requester.

The Interior Department also expressed interest in the EPA’s proposed new FOIA regulations which it submitted to the Federal Register without public comment in June. Under the new EPA regulations, “the administrator and other officials would be allowed to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide ‘whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” The new EPA regulations appear to expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allows the agency to functionally ignore any requests sent to the EPA’s regional offices, which have historically accepted FOIA requests, and not national headquarters.

Secret Service Releases Records on Chinese President Xi’s 2017 Visit to Mar-a-Lago

The Secret Service has just released nearly 150 heavily-redacted pages concerning a Chinese delegation’s visit to President Trump’s winter White House, Mar-a-Lago, in April 2017. The release is a belated response to a Freedom of Information Act appeal submitted by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW), as part of a lawsuit to open the White House visitor logs and the records of presidential visitors to Trump properties, including Mar-a-Lago.

The new release on the Chinese delegation led by President Xi Jinping contains little substance and even redacts Xi’s birthday, which is public information (Wikipedia says his birthday is June 15, 1953).

The release comes a month before the Second Circuit Court of Appeals hears oral arguments in the case, Doyle v. DHS.  The government claims that the records, which were routinely released by the Obama administration with no harm to national security, are presidential records. The Archive, CREW, and Knight argued in court filings that the logs are agency records clearly subject to the FOIA, not presidential records that only become available starting five years after the president leaves office. The appeal challenges the district court decision that effectively let “the Secret Service hide their records of everyone who lobbies the President,” according to Archive Director Tom Blanton.

Cyber Brief on Russian APTs at the Olympics

The Archive’s latest Cyber Brief addresses potential cyber threats at the 2020 Olympic Games in Tokyo, particularly threats from Russia, which is currently in danger of being suspended from the Olympics for the second consecutive time due to allegations the country forged medical documents and paperwork relating to fake athlete clinics. Given the operations by Russian-affiliated advanced persistent threats (APTs) during the PyeongChang 2018 Winter Olympic Games, there are credible expectations for cyberattacks in Tokyo. Coordinated cyber campaigns on past Games and affiliated organizations have been traced back to Russian intrusion sets, including APT actors Sofacy and Turla Group (also known as Fancy Bear and Venomous Bear, respectively).

The Vault is posting a variety of primary-source documents and other materials that offer additional context to the issues that includes documents pertaining to the Tokyo 2020 Olympics, the International Olympic Committee’s (IOC) anti-doping rules, the World Anti-Doping Agency’s (WADA) investigation into Sochi allegations, and the DOJ’s indictment of GRU officers.

The Cyber Vault is Hiring!

The National Security Archive’s fantastic Cyber Vault is currently looking for a research assistant beginning September 3. It’s a great opportunity for DC-area grad students – please share widely!

TBT Pick – The INF Treaty, 1987 – 2019

This week’s #TBT pick is chosen with the recent expiration of the Intermediate-range Nuclear Forces Treaty in mind. This week’s posting – The INF Treaty, 1987-2019 – includes key documents from both Soviet and American sources tracing the entire year of INF negotiations in 1987, and highlights the remarkable proposals on the table at the time (mostly from the Soviet side) for even more intrusive inspections and even more dramatic cuts in both strategic and conventional weapons.

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Advisory Panels in Tenuous Position under Trump, the Fight Intensifies for Guatemala’s Police Archives, and More: FRINFORMSUM 8/1/2019

August 1, 2019

Advisory Panels in Peril?

The JASON Defense Advisory Panel, which advises the U.S. government on defense science and technology matters, is the latest advisory panel the Trump administration is attempting to dismantle. The panel was established in 1960 and a review by the Federation of American Scientists reports that about half of the its reports are unclassified (a selection of reports dating as recently as 2018 can be found here). The Trump administration disbanded another science panel – the Department of Justice’s forensic science panel – in 2017.

Other disbanded panels include a State Department panel dealing with nuclear nonproliferation, the Independent Security Advisory Board, which was suspended in 2018. Two Navy committees were also on the chopping block this February – the Naval Research Advisory Committee and the Secretary of the Navy Advisory Panel.

The CIA’s Historical Review Panel also appears to be a victim of this trend. Dr. Robert Jervis, the panel’s chair, announced in an H-Diplo posting earlier this year that the panel did not meet in June 2018 as planned, and that members were recently informed “the Panel is being restructured and will not meet again until this has been done. The reasons for this remain unclear to us, and no schedule for resumed meetings has been announced.” Jervis noted that the State Department’s Historical Advisory Committee continues to monitor the agency’s cooperation in producing FRUS volumes, but goes on to make several vague references to possible changes to the way the agency reviews historical documents.

A CIA spokeswoman recently told Reuters that the panel would be reconstituted with new members later this year.

Guatemalan Police Archives.

Guatemala’s Right to History  

The Archive’s Kate Doyle talked with Foreign Policy this week about Guatemalan president Jimmy Morales’ efforts to close the country’s national police archives under the guise of national security concerns. Despite the significance of the records, which document the central branch of Guatemala’s security forces – an entity so deeply involved in repression during the armed conflict that the 1996 peace accords mandated it be completely disbanded – Doyle says, “The U.S. is saying nothing. The U.S. Embassy has been incredibly absent on these issues. They are not doing anything.” She added that the “assault on the police archive [is part of a] broader attack against human rights, justice, and anti-corruption efforts.”

The long-abandoned police archives were discovered in 2005 and contain 80-million pages covering the activities of the National Police from the late 19th century until its dissolution in 1997.  With the help of the National Security Archive and other organizations, the files were rescued from their deteriorating state, restored, and are in on-going process of being fully digitized, archived and made available to the public. Today, the Guatemalan National Police Archive constitutes one of largest and most revealing collections of “dirty war” documentation ever unearthed in Latin America. The records have also served prosecutors as crucial evidence in human rights criminal cases, leading to the conviction of military and police perpetrators.

Doyle voiced additional concerns to The Intercept in June that Morales may not only use national security concerns as a cover for closing the archives, but that the government may take legal action against the Swiss government and the University of Texas at Austin, which both have backup copies of the archives.

For more information on the police archives, visit our special collection.

NARA Releases Racist Reagan Tapes it Previously Withheld on Privacy Grounds

Members of the Tanzanian delegation danced on the floor of the General Assembly after the United Nations voted to recognize the People’s Republic of China in October 1971, a move that incensed then-Governor Ronald Reagan. Reagan called President Nixon after that vote and said, “To see those, those monkeys from those African countries—damn them, they’re still uncomfortable wearing shoes!” Nixon taped the recording, which later became the property of the Nixon Presidential Library, and later the National Archives (NARA).

NARA released a redacted version of the tape in 2000, but withheld the racist portions of the conversation to protect Reagan’s privacy – until Tim Naftali, a former director of the Nixon Presidential Library and current NYU professor, filed a successful request for an unredacted copy of the tape.

Paul Musgrave has a succinct and interesting explanation of how the Presidential Records Act of 1981, and its privacy exemption, applied to presidents like Nixon whose records pre-dated the Act. The question remains why the privacy exemption was extended to Reagan.

NSA Kept American’s Phone Records It Shouldn’t Have Had in the First Place

The National Security Agency (NSA) announced last year that it had purged Americans’ phone records that it had “inappropriately” collected as part of its drag-net surveillance of domestic phone calls. A new NSA IG report released through an ACLU FOIA lawsuit shows that the agency “inadvertently” continued to keep some of those records. The agency deleted the remaining data after it IG’s office discovered the error.

Earlier this year the Wall Street Journal reported that the NSA had formally recommended terminating its controversial phone and text surveillance program, which has been frequently criticized for violating Fourth Amendment protections against warrantless search and seizure. The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper’s later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans. Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. “The candle is not worth the flame,” a senior intelligence official told the Journal.

As the telephone metadata collection program approaches its final days, the National Security Archive’s Cyber Vault has pulled together a range of materials that chart its legislative origins and evaluate it from the perspective of effectiveness, legal and privacy concerns, and other considerations.

Air Force Fleet Readiness Continues to Decline

The percentage of Air Force aircraft that are able to fly has decreased each year since at least FY 2012, and an Air Force Times FOIA request shows that “By fiscal 2017, that metric had plunged to 71.3 percent, and it dipped further to 69.97 percent in 2018.” The Times reports this 8-percentage point drop continues despite the Air Force’s growing concerns and attempts to reverse the slide. Several trends are particularly worrying, including:

  • “The F-35A Lightning II fighter, down 5 percentage points. Fewer than half of the Air Force’s 148 F-35s were deemed mission-capable in 2018;
  • The F-15E Strike Eagle, down 4 percentage points;
  • The CV-22 Osprey, down 7 percentage points.”

TBT Pick – The Gulf War 29 Years Later

This week’s #TBT pick is chosen with the 29th anniversary of the Gulf War in mind. This 2001 posting includes a variety of documents from the Defense Intelligence Agency, Central Command, Space Command, and more, which cover internal decision-making as well as diplomatic, economic, and conventional military activities. This briefing book primarily focuses on the intelligence, space operations, and Scud-hunting aspects of the war.  It also includes a report describing how Desert Storm affected China’s view of future warfare, a document that raises questions as to what lessons other nations have drawn from U.S. military engagements in the Middle East and the Balkans.

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Court Rejects Competitive Harm Argument in Pain Pill Database Release: FRINFORMSUM 7/18/2019

July 18, 2019

DEA’s Pain Pill Database Released

The Drug Enforcement Administration’s controlled substances database – otherwise known as the Automation of Reports and Consolidated Orders System, or ARCOS – is a comprehensive index of every pain pill sold in the United States. And now data collected between 2006 and 2012 is public and searchable – thanks in part to the efforts of the Washington Post and West Virginia’s Pulitzer Prize-winning HD Media. During the 7-year stretch of data obtained by court order, a period that saw 100,000 deaths from opioid overdoses, ARCOS tracked 380 million transactions, pinpointing where each of the country’s 76 billion oxycodone and hydrocodone pills were shipped.

The ARCOS database joins the Consumer Financial Protection Bureau’s Consumer Complaint Database (which then-acting director Mick Mulvaney tried to take offline) as among the most significant databases to be made public by the federal government.

The news organizations won access to the database in a ruling from the Sixth Circuit Court of Appeals as part of a mammoth multi-district litigation effort on behalf of 1,300 plaintiffs against manufacturers, distributors, and retailers of prescription drugs – whose transactions the DEA monitored through its ARCOS database. Over the course of the years-long litigation, the DEA and defendants argued that release of the database would threaten ongoing law enforcement efforts and that “producing the data would cause Defendants ‘substantial competitive harm’ by revealing ‘details regarding the scope and breadth of [each manufacturer’s and distributor’s] market share.’”

The Sixth Circuit disagreed, and U.S. Circuit Judge Eric Clay wrote for the majority that, “In ordering the DEA to disclose the ARCOS data to plaintiffs, the district court specifically held that the DEA did not meet its burden of showing ‘good cause’ not to comply with plaintiffs’ subpoena for the ARCOS data…The district court, comparing the opioid crisis to a plague, even stated that because it is possible to ‘discover how and where the virus grew’ by studying the ARCOS data, disclosure of the ARCOS data ‘is a reasonable step toward defeating the disease.’”

The Sixth Circuit ruled in this matter (which was not a FOIA case) four days before the Supreme Court broadened FOIA’s Exemption 4, which protects privileged or confidential trade secrets and commercial or financial information, in a 6-3 decision in the case of Food Marketing Institute v. Argus Leader Media. The case, which was the first the justices heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP).

USDA Squashes Climate Change Report

Top officials at the Agriculture Department killed the release of a 33-page draft report on how the department could help agriculture understand, adapt to, and minimize the impact of climate change. Politico obtained a copy of the September 14, 2017, report, entitled “USDA Climate Resilience Science Plan,” which was intended to update a 2010 plan released during the Obama administration and hoped to make climate change “an explicit and functional component” of all USDA work. Politico’s Helena Bottemiller Evich summarizes the 2017 plan as setting “ambitious goals for addressing a broad range of climate change effects. It proposes ‘moving agriculture and natural resource systems to carbon neutral and beyond’ by reducing greenhouse gas emissions through practices such as increasing carbon storage in crops and soils. It also notes the importance of studying the ‘human dimensions’ of climate change — such as how it affects production, trade, pricing, and producer and consumer behavior.”

Interior Department Official’s Cozy Relationship with Koch-Funded Think Tank

Documents released through a FOIA lawsuit are showing the close connection between a Department of Interior official – Assistant Secretary of the Interior for Insular Areas Doug Domenech – and his former employer, the Koch-funded Texas Public Policy Foundation. The documents, which come at the same time the Interior Department’s inspector general is investigating Domenech and five other senior officials for alleged federal ethics rules violations, focus on lawsuits TPPF filed against the Interior Department prior to the Trump administration (one suit involved a property dispute with the Bureau of Land Management and the other “centered on TPPF’s efforts to remove Endangered Species Act protections from an imperiled arachnid called the Bone Cave harvestman, a species that resides in Texas”).

The FOIA-released documents also show Domenech helping TPPF’s general counsel, Robert Henneke, skirt the department’s FOIA queue. In June 2017 Henneke filed a FOIA request for a list of lawsuits filed against the department since President Trump’s inauguration, and writes to Domenech for help “sorting out the apparent miscommunication” with the FOIA office, which seems to have labeled the request for records voluminous; Domenech quickly put Henneke in touch with DOI’s top lawyer, Daniel Jorjani.

“Atoms for Peace” Was Actually a “Threat to Peace

The latest addition to the award-winning publications series The Digital National Security Archive provides a trove of important historical documentation on global nuclear proliferation, including numerous new details and insights into the clandestine programs of India, China, Israel, and other would-be nuclear states. U.S. Nuclear Nonproliferation Policy, 1954-1968: From Atoms for Peace to the NPT, compiled and edited by National Security Archive nuclear expert William Burr, explores a crucial period in the nuclear era when many of the problems and challenges facing today’s nonproliferation regime began to emerge.

The new collection, totaling over 2,300 documents and 12,645 pages and distributed by the academic publisher ProQuest, fills significant research gaps for historians and offers a variety of document-based cases to help inform public debate as well as government decision-making about curbing the spread of nuclear weapons.

Cyber Vault – GPS Wars

This week’s National Security Archive Cyber Brief focuses on military considerations for global navigation satellite systems, such as the U.S.’s Global Positioning System (GPS), Europe’s Galileo, and Russia’s GLONASS. As Cyber fellow Michael Martelle notes, “Military operations are particularly reliant on GNSS for navigation systems on aircraft, vessels, vehicles, and unmanned vehicles including drones and missiles; synchronizing operations; and pinpointing targets. The Persian Gulf War has become the exemplification of how readily-available PNT information boosts military effectiveness. Beyond the use of GPS for navigation, network-centric warfare relies on precise timing information to enable secure real-time communications.” The posting includes 11 documents covering topics such as navigation warfare and the need for resiliency measures.

TBT Pick – Apollo 11 and Covert Lunar Programs

This week’s #TBT pick is chosen with the 50th anniversary of the Apollo 11 mission in mind. The 2014 posting from our intelligence project highlights the covert side of the United States’ lunar programs and focuses on three topics — early U.S. military plans, including the possibility of conducting nuclear tests in space, the use of the moon to reflect signals for military or intelligence purposes, and U.S. intelligence analyses and estimates of Soviet missions and their intentions to land a man on the lunar surface.

The posting includes:

  • Army and Air Force studies from 1959 – 1961 on the creation of a military lunar base, with possible uses as a surveillance platform (for targets on earth and space) and the Lunar Based Earth Bombardment System);
  • A study on the detonation of a nuclear device on or in the vicinity of the moon; and
  • the U.S. theft and return of a Soviet space capsule during an exhibition tour.

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Trump and Putin’s G20 Meeting Puts Spotlight on the PRA, Senators Hone in on Bad EPA FOIA Regs, and More: FRINFORMSUM 6/27/2019

June 27, 2019

Trump and Putin’s G20 Meeting Puts Spotlight on the PRA

President Trump will be meeting with Russian President Vladimir Putin this Friday at the G20 meetings in Osaka, Japan, and the pressure is on the president not to destroy or tamper with the notes of the meeting, which must be preserved under either the Presidential Records Act or the Federal Records Act. The Trump administration’s refusal to comply with the House Oversight Committee’s requests “for answers about whether Trump destroyed or in any way altered the interpreter notes” from previous meetings with Putin prompted Committee Chairman Elijah Cummings to say: “The Presidential Records Act is at the core of the Oversight Committee’s legislative and oversight jurisdiction, and I had hoped that the White House would cooperate voluntarily with this inquiry. Instead, the White House has disregarded these legitimate congressional inquiries and dissembled about basic facts. These actions do not serve the interests of the American people, and they obstruct and frustrate the Committee’s review.”

In May the Archive joined Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR) in filing a Presidential Records Act suit to compel the White House to create and preserve records of the President’s meetings with foreign leaders. The Archive has obtained through the Freedom of Information Act and published thousands of “memoranda of conversation” of heads of state meetings dating back to President Eisenhower, including President Clinton’s 1999 telephone call with Russian President Boris Yeltsin in which Yeltsin announced his successor would be Vladimir Putin.

EPA Wants to Push Through Bad New FOIA Regulations without Public Comment

The Environmental Protection Agency wants to publish new FOIA regulations in the Federal Register – without public comment – under which rules “the administrator and other officials would be allowed to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide ‘whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” As it stands, the new regulations, which appear to expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allows the agency to functionally ignore any requests sent to regional offices, would go into effect 30 days after the publication in the Federal Register.

Long-time FOIA champion Senator Chuck Grassley wasn’t having it, and tweeted, “Americans deserve 2kno what their govt is up to Freedom of Information Act designed to promote transparency when govt lacks openness but recent SCOTUS ruling+EPA &Interior regs undermine FOIA I will write legislation 2fix TRANSPARENCY BRINGS ACCOUNTABILITY.” Senator Patrick Leahy added, “Congress won’t sit idly by while @EPA further guts FOIA w. an offensive rule allowing politicals to reject #FOIA requests w/o explanation. @EPAAWheeler: a friendly reminder that #Appropriations has oversight responsibilities. We’ll be chatting about this.”

SCOTUS Ruling Broadens Exemption 4

The Supreme Court has broadened FOIA’s exemption 4, which protects privileged or confidential trade secrets and commercial or financial information, in a 6-3 decision in the case of Food Marketing Institute v. Argus Leader Media.  The case, which was the first the justices heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP).

A possible silver lining is that the case was filed before the FOIA Improvement Act of 2016, which added a foreseeable harm standard that raised the bar for withholding information. MuckRock suggested during the oral arguments in April that, if the justices side with the plaintiff, as they did, that more litigators in the future may turn to enforcing the foreseeable harm standard.

Justice Breyer argued in his dissent, “I fear the majority’s reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”

Senator Chuck Grassley criticized the ruling (and the new EPA FOIA regulations) on the Senate floor, saying “I’m working on legislation to address these developments and to promote access to government records.”

Vigilance Needed to Keep CIA “Covert Agent” Expansion out of House Intel Authorization Act  

Open The Government and the Project on Government Oversight have an excellent write-up on the provision in the pending Senate intelligence authorization bill that would  allow the CIA to indefinitely withhold information on “the identities of all undercover intelligence officers, and United States citizens whose relationship to the United States is classified, regardless of the location of the individuals’ government service or time since separation of government service.” (Current law prohibits the disclosure of the identity of intelligence officers who are currently serving abroad or who have done so within the past 5 years.) Watchdogs will need to be vigilant to ensure the provision isn’t snuck into the House bill in conference.

ICE Detainee Records Update

The National Archives and Records Administration recently announced that Immigration and Customs Enforcement’s controversial proposed records schedule, which would have allowed the agency to designate as temporary (and then destroy) a wide array of sensitive immigrant detainee information, is now back on the Federal Register and the public has an additional 45 days to submit comments.

ICE’s records retention schedule, which all agencies must submit to NARA for approval, sought to destroy records on sexual abuse claims filed by detainees while at ICE facilities and investigative records on detainee deaths. NARA received thousands of comments, as well as letters signed by members of both the Senate and the House, opposing the plan. As a result, Archivist of the United States, David Ferriero, did not approve the records schedule and said in September 2018, “I will not approve the pending ICE schedule until all comments are adjudicated and resolved to my satisfaction.”

NARA notes on its blog that “Because of significant public interest in this schedule, NARA is also posting copies of the revised proposed schedule and the appraisal report on Regulations.gov with the notice from the Federal Register. The appraisal report is derived from NARA’s on-site reviews and discussions with ICE officials about agency business processes. Like all agency schedules, this one must be approved by the Archivist of the United States, following completion of the public notice and comment period, before it takes effect.”

FOIA Lawsuit shows repeated NSA “Over-collection”

An ACLU FOIA lawsuit has won the release of documents concerning the National Security Agency’s phone records surveillance program. The documents show that the program “has been marred by more compliance problems than the government has publicly acknowledged.” There were two instances of “over-collection” last year alone, where the agency was forced to purge “millions of Americans’ phone records after learning that some of the data was collected in error.”

The National Security Archive’s Cyber Vault recently published a primer on the phone surveillance program’s legislative origins. While the program is set to expire in December of this year, the Wall Street Journal reported in May that the agency has already formally recommended terminating the program. As the Cyber Vault notes, “The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper’s later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans. Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. ‘The candle is not worth the flame,’ a senior intelligence official told the Journal.”

OIP FOIA Guide Update

The Justice Department recently updated its FOIA guide (thanks to Allan Blutstein for highlighting this on Twitter). The updated sections include the sections on Proactive Disclosures, Exemptions 2, 7, 7(B), 7(D), 7(E), 7(F), 8, and Exclusions. The exclusions come from the 1986 FOIA amendments and concern “three categories of particularly sensitive law enforcement information;” in the section on FBI records, OIP sanctions other agencies adopting the exclusion on “a derivative basis.” Read all of the updates here.

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New Digital National Security Archive Document Collection Covers Nonproliferation Policy from 1954 to 1968

June 24, 2019

The National Security Archive, working with our partners at ProQuest, is publishing a rich new compilation of documents on nuclear nonproliferation policy during the presidencies of Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson. The 2,301-document collection, Nuclear Nonproliferation 2, Part I: From Atoms for Peace to the NPT, 1954-1968, covers an age of growing concern that the spread of nuclear power could lead to a proliferation of weapons capabilities with potentially negative implications for international stability and the U.S. position in world affairs. During this time the U.S. government supported a variety of nonproliferation initiatives, including export controls and international actions ranging from the creation of the International Atomic Energy Agency, test ban treaties, and an international nonproliferation agreement.

The expertly curated document collection covers the creation of the major institutions and agreements that make up the international nonproliferation system, including the International Atomic Energy Agency, the first iteration of the IAEA safeguards system, and the negotiation of the Nonproliferation Treaty. It also details the U.S. government’s concern about emerging nuclear weapons states — the “Nth Country Problem”— and its efforts to monitor nuclear activities in China, France, India, Israel, and elsewhere. Another important topic covered is the diplomatic effort to find a nuclear role within NATO for West Germany to deter possible German interest in an independent weapons capability. Solving that problem was essential for the breakthrough in the NPT negotiations during 1966-1967.

Among the many interest areas covered in this set are:

  • The creation of the International Atomic Energy Agency and the development of Agency safeguards to deter the diversion of nuclear resources into weapons programs;
  • India’s acquisition of a Canadian nuclear reactor whose weak safeguards facilitated the production of plutonium, a development that U.S. government officials closely watched;
  • The U.S. and British discovery of the secret Israeli nuclear reactor project in late 1960, internal U.S. discussions of policy options, continuing debates with the Israeli government over U.S. requests for inspections of the reactor site, and the results of the inspections;
  • Dwight D. Eisenhower’s proposal for a fissile material production cut-off, seen as a method to prevent nuclear proliferation, and supported by successive administrations, although less eagerly later in the 1960s;
  • U.S. government checking of West German nuclear activity and U.S. initiatives to reduce any West German interest in nuclear options and to integrate Bonn more tightly into the NATO system;
  • John F. Kennedy’s initial search for a nuclear nonproliferation agreement, beginning during the 1961 Berlin Crisis, and continuing into 1963;
  • Efforts to control the dissemination of sensitive nuclear technology, including the gas centrifuge, beginning with State Department and other U.S. government attempts to prevent Brazil from purchasing a gas centrifuge from West Germany in 1954 and to establish secrecy for improved gas centrifuges during the 1960s.

Using U.S. government records declassified since the 1990s, this collection picks up from, and expands the coverage provided in, the Archive’s earlier, widely praised ProQuest publication, U.S. Nuclear Nonproliferation Policy, 1945-1991. This collection also complements, and at point exceeds, the State Department’s Foreign Relations of the United States series. The editors of the FRUS have made an extraordinary contribution in producing several volumes on arms control policy, including nonproliferation, during the Eisenhower, Kennedy, and Johnson administrations. Yet, as valuable as those volumes are, because of the complexity of documenting arms control issues in general, involving not only nonproliferation but also test bans, outer space, and strategic missiles, the coverage of the NPT sometimes skims on the surface and important nuances are overlooked.

Of the 2,301 records in this collection, well over 700 documents cover the NPT negotiations, especially the crucial period from August 1966 through January 1968, when the substance of the treaty was settled. The documents on the NPT talks and others in the set were produced by a wide variety of government agencies and offices. Many of them are from the State Department or from the Arms Control and Disarmament Agency (ACDA), created by the Kennedy administration in 1961. The ACDA officials who played a prominent role in the NPT negotiations used State Department telegraphic communications to report on developments. The set also includes White House, CIA, and Pentagon documents.

If you don’t already have DNSA, sign up for a free trial today.

Is the CIA Bypassing Senate Judiciary with New (B)(3) FOIA Exemption? FRINFORMSUM 6/20/2019

June 20, 2019

ProPublica’s growing (b)(3) list.

Proposed CIA Exemption Will Make It Harder for Historians to get Agency Information  

A provision in the pending intelligence authorization bill would allow the CIA to indefinitely withhold information on “the identities of all undercover intelligence officers, and United States citizens whose relationship to the United States is classified, regardless of the location of the individuals’ government service or time since separation of government service.” (Current law prohibits the disclosure of the identity of intelligence officers who are currently serving abroad or who have done so within the past 5 years.)

Senator Ron Wyden (D. – Ore.) said he was not yet convinced the provision was necessary and that he was “concerned that it will be employed to avoid accountability.” The Senator went on to note, “The CIA’s request that the Committee include this provision, which invoked ‘incidents related to past Agency programs, such as the RDI [Rendition, Detention and Interrogation] investigation,’ underscores my concerns.”

Steve Aftergood highlighted the news on his Secrecy News blog, saying “The expanded definition, if enacted, would likely imply increased withholding of historical and other intelligence records under the Freedom of Information Act.”

My colleague and National Security Archive FOIA director, Nate Jones, was quick to point out that this is a troubling development because, for starters, the CIA already has several (b)(3) exemptions, including an Operational Files exemption that allows the agency to refuse to even search and review files it deems “operational” – a broad term that the agency also applies to histories. Jones also notes this provision, which would have a likely detrimental effect on FOIA requesters, was not vetted by the Senate Judiciary Committee, which has oversight over the FOIA. Jones says, “this language continues a trend of agencies not following the requirement that new (b)(3) exemptions ‘specifically cite’ to the FOIA to help people identify potential new exemptions without them being snuck into law.”

(B)(3) is an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has closer to 250 – including one about watermelon production data.

Pro Publica has a list of all the (b)(3) exemptions here.

Is the Interior Department Abusing “Awareness Review”?

A recent RollCall article on the Interior Department’s FOIA process paints a picture of a department that allows political appointees to review records to be released under FOIA – and the discretion to say which documents should or shouldn’t be released. The article, itself based on FOIA-released records, cites a change to the department’s FOIA policy that was formalized in May 2018 as justification for the new process. While awareness (or sensitivity) reviews are relatively common, they have typically been used to give officials a heads-up that a release was coming and did not allow political appointees a say in the release (although there have been some notable exceptions). As Cause of Action notes in an excellent collection of resources on the issue, “Sensitivity review has become an entrenched agency practice regardless of which party or president is in power… At its worst, sensitive review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.”

There’s nothing in the FOIA statute that sanctions this kind of “awareness review”, particularly if that review interferes with the timely release of a FOIA-requested document. FOIA establishes a presumption of openness for all records and only says an agency shall withhold information if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or (II) disclosure is prohibited by law.” In other words – FOIA is not PR for political appointees.

FAA Records Raise Questions about Trump’s U.N. Nominee

Records released by the Federal Aviation Administration show that the U.S. ambassador to Canada and President Trump’s nominee to the U.N., Kelly Craft, “made 128 flights between the United States and Canada during a 15-month span of her tenure in Ottawa, the equivalent of a round trip once a week.” The State Department has maintained that many of the trips – which she took on a private jet – were related to the new North American trade deal, but records show “some of trips correspond with dates of events Craft attended in her home state of Kentucky — such as the Kentucky Derby and a media interview at a University of Kentucky basketball facility named for her husband, Joe Craft, a coal billionaire.” The State Department’s Foreign Affairs manual mandates that ambassadors spend no more than 26 work days a year away from their post without special approval, and neither the U.S. embassy in Ottawa or the State Department have released requested records on how many days she was present in the Canadian capital.

Outgoing Alabama Sheriffs Have a Habit of Destroying Official Records

Investigative reporting by ProPublica and AL.com using public records requests illuminates some of the retaliatory tactics outgoing Alabama sheriffs take after losing an election. According to records and interviews, these include destroying public records and property – like drilling holes through government-issued smart phones, removing “reams of records”, taking hard drives from office computers – and pocketing official funds. In one egregious example, “Etowah County Sheriff Todd Entrekin pocketed more than $750,000 worth of funds initially allocated to purchase food for jail inmates between 2015 and 2017, and purchased a $740,000 beach house. Sheriff’s office financial documents recently obtained by ProPublica and AL.com via public record request show that in the six months after his June electoral loss, Entrekin personally received an additional $269,184 worth of checks from sheriff’s office accounts. The records show that the money was initially allocated to feed federal immigration detainees and state and municipal inmates housed in the county jail.”

TBT Pick: U.S., Britain Developed Plans to Disable or Destroy Middle Eastern Oil Facilities from Late 1940s to Early 1960s in Event of a Soviet Invasion

This week’s #TBT pick comes from our Iran Project and is a 2016 posting on recently declassified British documents that detailed the CIA’s role in a top-secret plan to ravage the Middle East oil industry. According to guest editor Steve Everly, “The intelligence agency’s oversight included inserting undercover operatives into oil-company jobs to spy on some of the companies. The CIA created – with an American oil company’s assistance – an ambitious denial plan for Saudi Arabia and exported similar plans to Kuwait, Bahrain and Qatar where Britain was the governing authority…British documents also reveal discussions about using nuclear weapons in Iran and Iraq.  State-controlled refineries emerged in both countries and were not covered by existing denial plans which depended on cooperating oil companies. British military officials believed nuclear bombs were an option to destroy these facilities until a plan using ground demolitions with conventional explosives was possible.”

Read the entire piece here.

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FOIA Helps Show Elaine Chao’s Transportation Department Has Special Liaison for Husband’s Home State Projects: FRINFORMSUM 6/13/2019

June 13, 2019

Sen. Mitch McConnell and Transportation Secretary Elaine Chao at a parade in Madisonville, Ky., on Nov. 2, 2014. | Tom Williams/CQ Roll Call.

Emails Released through FOIA Show Special Relationship between Transportation Dept. and State of Kentucky

FOIA-released records obtained by American Oversight and provided to Politico illuminate how Transportation Department Secretary Elaine Chao prioritizes requests from Kentucky – home state of her husband and Senate Majority Leader Mitch McConnell. Specifically, the department established a special liaison, Chao’s chief of staff Todd Inman who is also a longtime Kentucky resident, “to help with grant applications and other priorities…paving the way for grants totaling at least $78 million for favored projects as McConnell prepared to campaign for reelection.” Other states do not have a special liaison within the department.

This revelation comes on the heels of a February release of more than 800 pages of FOIA-released emails that further detail Chao’s office’s relationship with leaders from Kentucky. The emails show that Secretary Chao “met at least 10 times with politicians and business leaders from the state in response to requests from McConnell’s office.” While the records do not show how often Sec. Chao met with leaders from outside of Kentucky, they do show “McConnell’s staff acting as a conduit between Chao and Kentucky political figures or business leaders, some of whom previously have had relationships with the couple.”

FOIA Records Shed Light on Dept. of Interior Efforts to Stymie Humanitarian Aid Along the Southern Border

A federal jury in Tucson was unable to reach a verdict in the case of Scott Warren, a geographer who was charged with human smuggling last year in connection with his work for the humanitarian aid organization No More Deaths, which leaves food and water for migrants crossing the Sonoran Desert and has led efforts to recover remains of those who have died. Judge Raner C. Collins dismissed the jury and the U.S. attorney’s office has yet to indicate if it will seek another trial.

Warren’s was one of three No More Deaths-related trials, and FOIA requests from earlier this year help show what the Department of Interior has done to target the aid group. Specifically, emails released to The Intercept under the FOIA detail how the Fish and Wildlife Service, an Department of Interior agency that administers much of the land on the southern Arizona border, has sought to blacklist its members from access to a number of public sites. The FOIA release focuses largely on the communications of Fish and Wildlife official Sidney Slone, who worked to make the permitting process for No More Deaths much more stringent. Slone’s growing frustration with the food, clothing, and plastic gallon water jugs purportedly left by the volunteers are evident throughout the exchanges. The Intercept’s Ryan Deveraux argues, “The newly released materials illustrate how generations of hard-line border enforcement measures collide with government wilderness preservation priorities, creating a situation in which thousands of people have died and the actions of those working to prevent further loss of life have been criminalized in the name of environmental conservation.”

Congressional Transparency Caucus 

Alex Howard has a useful rundown of the June 7 Congressional Transparency Caucus meeting – “a remarkable forum inside of the United States Capitol that featured ten presentations from government officials and members of civil society on innovative tools and technologies.” Presenters included Demand Progress’ Daniel Schuman, ProPublica’s Derek Willis, and the Department of Justice Inspector General Michael Horowitz. The live stream and Howard’s analysis can be found here.

DHS IG Resigns after Whitewashing FEMA Audits

The Department of Homeland Security’s Inspector General, John V. Kelly, has resigned after reports that he instructed his staff to misrepresent the agency’s disaster response. The internal review, which was completed over 14 months and was obtained by the Washington Post, found that Kelly “overrode auditors” and instructed them “to ignore more problems,” and ordered them to produce “feel-good reports.” This practice spanned five years, 2012-2017, which saw some of the country’s most catastrophic natural disasters – from 2012’s Hurricane Sandy to the epic 2016 flooding throughout southern Louisiana. In 2017 Kelly’s office, facing Congressional pressure, purged 13 faulty reports from its website, including the Louisiana flooding report, with a notice that they were “not compliant” with federal auditing standards. During Kelly’s tenure, negative information not placed in audits was sometimes placed in “spin-off” reports.

Guatemalan Police Archives.

Kate Doyle Talks with The Intercept about Threat to Guatemala’s Historical Archive of the National Police

The Archive’s Guatemala Documentation Project Director, Kate Doyle, recently spoke with the Intercept’s Cora Currier about the current threat to Guatemala’s National Police Archives – a once decaying building containing five miles worth of paper documents belonging to the National Police, the central branch of Guatemala’s security forces – an entity so deeply involved in repression during the armed conflict that the 1996 peace accords mandated it be completely disbanded.

Doyle gives a riveting history of the archive and how it was, somewhat miraculously, discovered:

“Their records ended up on a sprawling police base in Zone 6 of Guatemala City, a busy working-class neighborhood downtown. They were shut up inside an abandoned cluster of buildings inside this big base that had a lot of different barracks and activities and all kinds of things going on. Fast forward to 2005, when residents of that neighborhood called the government’s human rights prosecutor and asked for his help in determining whether weapons and munitions were being stored properly on the base. In the course of that somewhat routine inspection of the base, the investigators found these documents, and that is how this enormous, abandoned, moldering collection of documents — millions and millions of historical files of the abolished National Police — came to be found.”

Doyle also cites her concerns that Guatemalan President Jimmy Morales may not only use national security concerns as a cover for closing the archives, but that the government may take legal action against the Swiss government and the University of Texas at Austin, which both have backup copies of the archives.

For more information on the police archives, visit our special collection.

The “Launch on Warning” Nuclear Strategy and Its Insider Critics

“Launch-on-warning,” a feature of U.S. nuclear warfighting strategy since the late 1970s, has frequently faced intensive criticism because of the high risk of accidental launches and uncontrollable outcomes, including massive casualties, according to recently declassified records recently posted by the Archive. Yet, successive presidential administrations have stood by a prompt-launch approach. Two newly declassified highlights of the posting are White House adviser William Odom’s critique of launch-under-attack and President Ronald Reagan’s National Security Decision Directive 13, which provided criteria for nuclear war planning, including the role of launch-on-warning as a way to keep Moscow “uncertain.”

TBT pick – The Guatemalan Death Squad Diary and the Right to Truth

This week’s #TBT pick is a 2012 posting on Doyle’s 2012 testimony before the Inter-American Court of Human Rights in the case of the Diario Militar in Guayaquil, Ecuador, and features a transcript of her testimony. She begins, “the State of Guatemala has systematically hidden the information in its power about the internal armed conflict. The Guatemalan Army, the Police and the intelligence services are intrinsically opaque, secretive and closed institutions, and it has been almost impossible to gain access to their records. This policy of silence has survived the peace accords; it has survived the Historical Clarification Commission; and it continues today – despite the discovery of archives, the exhumations of clandestine cemeteries, the criminal convictions of perpetrators of human rights violations, and the unceasing demand for information by families of the disappeared.”

Read the entire testimony here.

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