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New (B)(3)s Find Way Into Farm Bill, College-Sponsored Bank Accounts Charging “Legally Dubious Fees”, and More: FRINFORMSUM 12/13/2018

December 13, 2018
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(B)(3) Exemptions Find Way Into Farm Bill 

Two proposed (B)(3) exemptions that will prevent the public from knowing information it should have access to are included in the Farm Bill. The carve-outs concern rural broadband information (which appears to benefit large telecom corporations at the cost of local smaller companies – text page 257) and an agricultural research pilot program (page 317).

FOIA’s (B)(3) exemption is an expansive and pernicious one 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.

Even if the Farm Bill exemptions are merited, which is unclear, any proposed FOIA exemption should go through the normal, established process and be thoroughly vetted by the Senate Judiciary Committee and House Oversight and Government Reform Committee.

College-Sponsored Bank Accounts Charging “Legally Dubious Fees”

College students that take advantage of school-sponsored bank accounts pay over three times as much in fees, this according to a 2018 Consumer Financial Protection Bureau report released through the FOIA. The report, which was initially prepared by the CFPB and shared with the Department of Education, surveyed nearly 600 schools and found that students at universities that enter into marketing agreements with financial institutions and who take part in the paid promotion accounts are charged “legally dubious fees.” The schools that take part in the financial marketing receive payments from banks based on the number of students that enroll in the accounts, raising concerns about conflict of interest.

The 2018 report echoes finding of an earlier 2016 CFBP report, which found “many schools are more focused on their bottom line than their students’ well-being when they agree to sponsor financial accounts,” and comes at a time when the student loan ombudsman office at the CFBP has been vacant for four months. The most recent ombudsman, Seth Frotman, blamed the CFPB for burying the 2016 findings in his resignation letter, stating that “when new evidence came to light showing that the nation’s largest banks were ripping off students on campuses across the country by saddling them with legally dubious fees, Bureau leadership suppressed the publication of a report prepared by Bureau staff.”

Zinke Loyalist and Political Appointee to Oversee Interior FOIA Shop

Secretary of the Interior Ryan Zinke recently deviated from norms and installed a political appointee to head the agency’s FOIA office, a position that is normally lead by career staff to avoid the appearance of politicization of the release of information. The new chief FOIA officer is Daniel Jorjani, who has previously acted as an adviser to Charles and David Koch. The move comes on the heels of the Justice Department launching an investigation into Zinke and at a time when the FOIA office is receiving an influx of requests.

Zinke’s order appointing Jorjani implied he believes Jorjani will streamline the office, stating, “It is clear that some aspects of the FOIA program’s decentralized structure hinder efficient and effective management of operations in the current environment.”

A document released through FOIA earlier this year painted Jorjani as a Zinke loyalist, telling a staffer that “At the end of the day, our job is to protect the Secretary.”

New Pre-Publication Review Policy on the Way

The Office of the Director of National Intelligence told Steve Aftergood in response to his FOIA request that a new, IC-wide pre-publication review policy is on the way. Two years ago the House Intelligence Committee directed the ODNI “ to improve the government’s controversial policy on reviewing books, articles and speeches by current and former intelligence employees prior to their publication, so as to make the process more uniform, timely and fair.” Until the ODNI launches the new policy, current and former employees must comply with the existing policy dating from 2014.

CIA Vowed To “Continue to Fight to Abolish FOIA”

Muckrock recently highlighted a jarring discussion among CIA employees during a 1984 team building exercise that included a frank assessment of the agency’s stance on FOIA – that their position should be to “continue to fight to abolish” the transparency law. As JPat Brown notes, “While the CIA’s opposition to FOIA has been extensively documented throughout this project, it’s rare to see the matter discussed in such explicit terms. The fact that it was a single line in a document that had only been declassified in 2010, and even then only made public last year as a result of our three year lawsuit, is a testament to the Agency’s commitment to keeping its history hidden.”

Secretary of State Dean G. Acheson. Photo taken at Acheson’s office in 1950, from collection of Harry S. Truman Library, accession number 85-63.

NATO’s Original Purpose: Double Containment of the Soviet Union and “Resurgent” Germany

Secretary of Defense Robert McNamara sent an illuminating memo to President Lyndon B. Johnson in Fall 1966 that explained the political reasons for keeping U.S. troops in Europe: to maintain NATO’s “cohesion,” to prevent Soviet “political blackmail,” to deter “any bilateral Soviet-FRG [Federal Republic of Germany] security agreement,” and to discourage “the revival of German militarism,” according to a collection of previously classified documents recently published by the Archive.

Against the current backdrop of discussions at the top levels of the U.S. government over security guarantees in Europe, McNamara’s memo and a selection of other declassified U.S. documentation provide historical context for decades of U.S. policy toward Europe and more specifically the functions of NATO and the relationship between Germany and European security.

Reagan, Gorbachev and Bush at Governors Island

The U.S. and NATO allies worried about losing control of the public narrative of the Cold War in December 1988 after Soviet leader Mikhail Gorbachev’s offer of an arms race in reverse in his famous United Nations speech, according to declassified documents published this week by the National Security Archive. The documents were published in time to mark the 30th anniversary of Gorbachev’s groundbreaking U.N. speech and describe a number of interesting items, including the U.S. debrief to allies about the Soviet leader’s subsequent short summit with President Ronald Reagan and President-elect George H.W. Bush at Governors Island in New York harbor, and a discussion with the Pakistani ambassador that shows deep suspicion on the part of a senior State Department official about Soviet intentions and reveals that the U.S. had no strategy for Afghanistan beyond lubricating the Soviet withdrawal.

The new documents add to the extensive body of evidence previously published by the Archive, both on the Web in 2008 and in the award-winning book, The Last Superpower Summits: Gorbachev, Reagan, and Bush: Conversations that Ended the Cold War (CEU Press, 2016).

For Fun – Can You Outsmart the NSA?

Try to solve puzzles from the spy agency’s in-house magazine CRYPTOLOG, a large collection of which we recently posted and indexed in our Cyber Vault. Search keyword “Puzzle” to try 100+ brainteasers, then “Solution” or “Answer.”

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FOIAonline Still Broken Six Months After Disastrous Redesign: FRINFORMSUM 12/6/2018

December 6, 2018

FOIAonline Still Broken Six Months After Disastrous Redesign

Six months ago the would-be government-wide FOIA portal, FOIAonline, was redesigned and the site lost much of its functionality as a result. (The Reporters Committee’s Adam Marshall has a good run-down of all the things wrong with the site here.) In July FOIAonline posted a notice on its homepage saying the setback would only be short-term, claiming that “Much of the information from the previous version of FOIAonline is not yet in 3.0. This process is expected to take several weeks to complete. We appreciate your patience as we continue to work through the most recent cases to the oldest.”

Several weeks turned into six months and there are still no updates about when we can expect the website, which the Environmental Protection Agency provides the IT for, to return to its previous usability.

Security Oversight Office Celebrates 40th Anniversary and Asks How to Fix Declassification

The Information Security Oversight Office, which oversees the government-wide security classification system, celebrated its 40th anniversary today and asked how to fix declassification at an event in DC. The National Security Archive’s Director Tom Blanton gave the keynote address, which was followed by a panel discussion with four former ISOO directors as they shared their perspective on how the agency should evolve as the government’s work becomes increasingly digital. An idea embraced by Blanton and several others is to empower the National Declassification Center to take control of historic documents that are 25-years-old or older, rather than letting agencies drag their feet and conducting costly reviews of the documents.

Metro Was Willing to Give Special Treatment to “Unite the Right” Rally Organizer

A public records request revealed that the Washington D.C. area- transit authority, Metro, “was willing to work with the organizer of a white supremacist rally in Washington this summer to provide special accommodations for his group.” The emails contradict Metro’s earlier position that it did not try to facilitate travel for the hate group.

This summer Jason Kessler, who helped organize the 2017 Unite the Right rally in Charlottesville, VA, asked for special treatment to travel from Virginia to the capital for a “Unite the Right 2” event.  Kessler said he “would like to coordinate with your department for the safety of my demonstrators and the general public. We are anticipating a potential for violence from left-wing Antifa groups and are concerned about the public transit process being vulnerable points for an ambush.” A Metro employee said “Absolutely…please feel free to call me at your convenience.”

News leaked that Metro could provide a special train for Kessler and his group, and Metro faced outrage from elected officials, the public, and Metro’s labor union. Metro then shifted its posture and said that the idea of special accommodations for rally-goers was “a joint law enforcement operation with a unified command” and that the D.C. metropolitan police were the lead agency – an account the police denied.

Metro initially denied the records request, citing the security of Metro operations and the safety of customers and employees, but an appeal won the release of the information.

Political Aide at VA Shut Down Top Diversity Officer After Charlottesville

Department of Veterans Affairs’ emails obtained through FOIA by American Oversight and shared with the Washington Post show that a top White House appointee “sought to silence the agency’s chief diversity officer, who — in the aftermath of last year’s racially charged violence in Charlottesville — pushed for a forceful condemnation that was at odds with President Trump’s response.” The White House appointee, John Ullyot, initially told the diversity specialist, Georgia Coffey, to drop the idea of sending a statement to agency employees and the public strongly condemning the white supremacist rally. (Unconfirmed reports allege Ullyot was following a White House directive not to draw attention to the events or President Trump’s “all sides” comment.) Ullyot said an email was unnecessary because the VA secretary had already made a similar statement earlier in the week – although he also said “we should all feel free to share our own personal views on the recent events.” Coffey eventually decided to post the comments, signed in her own name, to the diversity office website. VA officials removed the post and reprimanded her, and she retired shortly after.

Cyber Brief: Cryptolog

Five years ago, the National Security Agency released 136 issues of its internal Cryptolog periodical spanning 1974 through 1997. The collection offers a look into the some of the discussions being held within one of America’s most secretive intelligence agencies and also serves as a vehicle for organizational reflection. Conflict between linguists and cryptanalysts over promotions and pay scales rages in the pages of Cryptolog for two years, and a four-part series on the agency’s intern program was published in 1974. The National Security Archive is now providing a complete index of all 1,504 items in the declassified collection, including but not limited to articles, interviews, and puzzles.

TBT Pick – A Quarter Century of U.S. Support for East Timor Occupation

This week’s #TBT pick from 2005 highlight’s the East Timor Truth Commission report’s use of declassified US documents to call for reparations resulting from the US’s support of the Indonesian invasion and occupation of East Timor from 1975 until 1999. The Archive provided the commission over 1,000 declassified documents to aid the effort in absence of any help from the US governments. The documents show, among other things, that nearly ten months prior to Indonesia’s invasion of East Timor, the US Embassy in Jakarta and the State Department were paying close attention to the Indonesian military buildup and propaganda campaign. By March, 1975 the National Security Council was recommending “a policy of silence” regarding Indonesia’s intention to “incorporate Portuguese Timor by force.”

In 2001 the Archive posted newly declassified documents showing that Secretary of State Henry Kissinger and President Gerald Ford gave the green light to Indonesia’s 1975 invasion of East Timor, the beginning of a 24-year occupation in which more than 100,000 Timorese died.

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Air Force FOIA Shop Says Request Denied for “Reasons”: FRINFORMSUM 11/29/2018

November 29, 2018

The Air Force Couldn’t Have Sent a More Unprofessional, Unlawful FOIA Response Letter to a Worse Place

The Air Force has sent a shockingly informal, candid, unprofessional, and unlawful FOIA response letter to the National Security Archive. The letter blasély stated in its denial that, “There are more reasons listed for not releasing any of the information you are requesting. This is a heads up to let you know that if you wish to continue this request it will be transferred to Higher Headquarters with about the same results. The 19th AF does not believe this information should be released to the public at all. You may continue your request just let me know or you can withdraw your request.”

There are a number of problems with this response. Chief among them being that the FOIA statute, as all FOIA processors should know, requires agencies to clearly articulate what FOIA exemptions they are invoking to redact information. The added insult of this Air Force FOIA officer (or poorly-trained contractor) trying to talk the requester out of appealing the decision by suggesting it won’t be successful is unacceptable. CC@OGIS.

FOIA FACA Meeting

The FOIA Federal Advisory Council held the most recent meeting of its 2018-2020 term today, with a very interesting panel discussion with the Inspectors General from the State Department, the Intelligence Community, the National Credit Union, and the National Science Foundation. There are intriguing opportunities for oversight/enforcement collaboration between FOIA shops, the FOIA ombuds office OGIS, and the Council of the Inspectors General, and hopefully the seeds are being laid for such an end.

Chief Records Officer of the US Laurence Brewer also gave an update on records management and agency records retention schedules, and the subcommittees on records management, time/volume, and vision all presented reports on their progress. All of the materials from today’s meeting, which was live-streamed, will be posted here.

FOIA Helps Show Police Departments Inflating Rape Case Statistics

An alarming number of police departments appear to be inflating rape case statistics, implying they have solved cases when they’ve simply closed them, according to a ProPublica, Center for Investigative Reporting, and Newsy investigation. Police departments do this by abusing the “exceptional clearance” classification – a classification that is supposed to be used sparingly and only in cases when police have enough evidence to make an arrest and know who and where the suspect is but, for reasons outside their control, cannot make an arrest.

Filing over 100 public records requests with 60 police departments across the country, in conjunction with analyzing data from more than 70,000 rape cases, revealed that “many departments rely heavily on exceptional clearance, which can make it appear that they are better at solving rape cases than they actually are.”

As an example, the Baltimore County Police Department only made arrests in about 30 percent of its rape cases, but by overusing the exceptional clearance classification, touted the figure as being a 70 percent clearance rate. Baltimore isn’t alone – “About a dozen departments that provided data had twice as many exceptional clearances as arrests in 2016. To the public, this effectively made it seem as though they had solved three times the number of rapes that they actually had.”

Read the full investigation here.

Rick Perry and “The Jerky Boys of Russia”

A FOIA request has won the release of documents showing the Department of Energy’s internal reaction to realizing that Energy Secretary Rick Perry had been pranked by a Russian duo that had previously targeted U.N. Ambassador Nikki Haley, Elton John, and others. The incident occurred last July when Vladimir Kuznetsov and Alexei Stolyarov sent an email to Perry’s aide, Stan Gerdes, posing as a staffer for Ukraine Prime Minister Volodymyr Groysman by the name of Sergey Stolyarenko and requesting an interview. The email came from “someone named Dmitro Krasnenko with an email address ending in ‘ukr.net.’”

The pair talked with Secretary Perry for 20 minutes about energy issues, focusing in particular on coal; the call was released on the Russian website Pravda soon after.

The FOIA-released documents show the Energy Department’s concern at a number of procedural breakdowns even before the conversation was leaked, chief among them being: “A political appointee who received the initial request doesn’t appear to have properly vetted or flagged the call. Perry didn’t have a translator. And DOE doesn’t appear to have looped in the White House, State Department or embassies beforehand.”

Not smart.

Video of Wildfire Started By Gender Reveal Stunt Released via FOIA

A FOIA request filed by my hometown paper, the Arizona Daily Star, to the U.S. Forest Service has won the release of a video confirming the genesis of the Sawmill Fire blaze – a gunshot that sparked a blue explosion intended to be part of a Border Patrol agents gender reveal party. Border Patrol agent Dennis Dickey of Tucson fired a gun at a black box labeled “boy” filled with the explosive substance Tannerite, an explosion ensued, and the 49-second video records a male voice ordering witnesses to “start packing up!” after the fire begins to spread. The fire burned 47,000 acres and cost $8.2 million to extinguish; Dickey pleaded to a sentence of five years’ probation and was ordered “to pay restitution totaling more than $8.1 million. He agreed to make an initial $100,000 payment and monthly payments thereafter.”

Census Bureau Releases 2020 Census Question Records

The U.S. Census Bureau has posted frequently requested records pertaining to the 2020 census – thanks to Michael Ravnitzky for drawing attention to the release. The page contains information on both the citizenship question as well as information on questions regarding sexual orientation and gender identity.

In July of this year redacted  Commerce Department emails released as part of an ongoing lawsuit show that the Trump administration discussed adding a citizenship question to the 2020 census within months of Trump taking office. The 600-plus emails, which NPR has filed FOIA requests for to help peel back the redactions, contradict the administration’s earlier claims that the question was being added at the request of the Justice Department to better enforce the 1965 Voting Rights Act. The emails instead show that in May 2017 Steve Bannon, then President Trump’s strategist, tasked Commerce Secretary Wilbur Ross with talking “to someone about the census.” A month later, Secretary Ross’ aid “pledged to press Justice Department officials to say they needed better citizenship data for law enforcement.”

The Palace of Justice burned to the ground during military efforts to retake the building from M-19 guerrillas. Eleven Supreme Court justices died in the blaze, along with dozens of others. [Photo: Revista Semana]

TBT Pick – Palace of Justice Burning

This week’s #TBT pick is chosen with the start of the Colombia Truth Commission today in mind, and is a 2009 posting analyzing the accuracy of a declassified State Department cable blaming the Colombian Army for the deaths and disappearances that resulted from the operations to retake the Palace of Justice building in November 1985. Read more from our Colombia project here.

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FOIA and Academia, Brass Parachutes, and More: FRINFORMSUM

November 8, 2018

FOIA and Public Universities

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

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

Brass Parachutes: The Pentagon’s Revolving Door

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

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

Read the entire POGO report here.

Oversight Summit

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

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

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

Apply to the Nuclear History Boot Camp

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

FOIA Aides Funeral Home Oversight in Michigan 

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

Presidential Orders – A Research Aid for Executive Branch Cyber Policy

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

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

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

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

November 1, 2018

Long-Sealed Watergate Road Map Released

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

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

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

OGIS Director Gives Good Advice on How to Improve FOIA Shops

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

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

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

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

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

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

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

Cyber Brief: Cyber Security in the US Legal Code

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

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

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

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

TBT Pick – The CIA’s Vietnam Histories

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

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

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

October 25, 2018

Judge Tells DHS that FOIA isn’t Battleship

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

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

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

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

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

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

District of Columbia Files FOIA Suit Against ICE

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

Ancestry.com Getting Special Treatment?

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

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

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

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

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

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

October 18, 2018

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

Gina Haspel CIA Torture Cables’ Dates and Times Declassified

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

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

Fish and Wildlife Service Moves to Limit Information Released under FOIA

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

Interior IG’s Replacement Comes as Surprise to Interior IG

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

DOE Belatedly Declassifies Decision Announcing Declassification

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

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

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

FOIA Suit Challenges Definition of a ‘Record’

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

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

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

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

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

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

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

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