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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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DOJ FOIA Report Shows OIP Still Living in “La-La-Land”: FRINFORMSUM 6/6/2019

June 6, 2019

Year after year, the Department of Justice’s Office of Information Policy (OIP) issues a summary of annual agency FOIA reports that misinterprets FOIA performance across the federal government to the point the report’s main conclusions are unreliable, and this year is no different.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

OIP’s mandate is to “encourage” government-wide FOIA compliance – an important step short of actually enforcing the law – and its longtime director, Melanie Pustay, doggedly refuses to acknowledge FOIA’s systemic problems, agencies’ hostility to complying with FOIA, or her office’s unwillingness to take agencies to task for not following the law. In 2015 Pustay was accused by the former chair of the House Committee on Government Oversight and Reform, Rep. Jason Chaffetz (R-Utah), of living in “la-la-land” for testifying that she believed FOIA was being properly implemented, and Senator Chuck Grassley told her during a 2018 hearing that her explanations for why the “release to one, release to all policy” had yet to be finalized (it still hasn’t) didn’t pass the “common-sense test.”

A great example of a “partial release” – more on FOIA Mapper: https://foiamapper.com/annual-foia-reports-2015/

With this in mind, we can take the latest report’s finding of a government-wide FOIA release rate of 93.8% with a bucket of salt. The report says that this is “the tenth year in a row that the number of responses to FOIA requests where agencies provided a release of information either in full or in part exceeded 91% of the requests processed for a disclosure determination.”  What the report does not say is that OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see right for an example), and excluding requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent, and a closer reading of the OIP report puts that figure at 65 percent.

Other highlights from the report include:

  • The government received more FOIA requests than ever in FY 2018, totaling 863,729 requests.
  • Backlogged requests have shot up from last year, from 111,344 to 130,718.
    • My colleague Nate Jones notes in his must-read article, FOIA: A Colossus Under Assault, that in 2008 “the President of the United Statesinstructed every federal agency to reduce its FOIA backlog by ten percent every year. How many agencies followed this presidential order? Just a single one: the Department of Health and Human Services. If agencies had followed this presidential instruction, most if not all of FOIA backlogs would be eliminated and requesters could get their documents in a timely fashion. But as ninety-nine percent of agencies disobeyed a presidential instruction, no one from the White House, Congress, the DOJ Office of Information Policy, or the FOIA Ombuds Office chastised or prodded agencies, or analyzed why the president’s instruction was not followed.”
  • Processing time for the majority of “complex requests” (an arbitrary term that covers many straight-forward requests) takes between 100 and 120 days, with a decent percentage of “complex” requests taking over 400 days to process. The FOIA statute mandates a response be given within 20 business days, 30 if there is a good reason for an exception.
    • Remember, the 2016 FOIA Improvement Act mandates that if an agency misses its response deadline, it often can’t charge fees.
  • The appeals backlog is growing – up to 4,745.
    • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
  • Litigation costs rose to roughly $40,800,000.
  • “By the end of the fiscal year, agencies reported collecting a total of $2,981,312.77 in FOIA fees. The FOIA fees collected in FY 2019 amounts to less than 1% of the total costs related to the government’s FOIA activities.” These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.

This year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure if they hope to escape the growing number of requests, backlogged appeals, and litigation, and OIP should be leading that charge rather than defending agencies’ FOIA practices at every turn.  If agencies are looking for guidance on how to move forward in the absence of true leadership from OIP, they should turn to the recommendations made by the FOIA Federal Advisory Committee, which includes instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches — the key reason behind the years and decades-long processing delays.

FOIA Federal Advisory Committee Update

The FOIA Federal Advisory Committee’s 2018-2020 term held its most recent meeting today in the National Archives and Records Administration’s McGowan Theater, and the livestream from the event can be found here. The subcommittees on records management, vision, and time/volume all offered updates, and the University of Denver’s Sturm College of Law’s Margaret Kwoka delivered a presentation on who uses FOIA and what information they are trying to obtain. Kwoka’s findings show that the majority of FOIA requesters at certain agencies are commercial requesters seeking business information, or people seeking first-person information about themselves, which is information that could help those agencies identify which records requesters would benefit most from the agency posting proactively.

Tiananmen Massacre 30th Anniversary: Declassified Records Describe Attacks by Chinese Troops, Internal Official Debates, and U.S. Attempts to Keep U.S.-China Relations on Track

This week the Archive published a special exhibit on the 30th anniversary of the massacre at Beijing’s Tiananmen Square, 4 June 1989. The declassified documents selected for the exhibit demonstrate that U.S. embassy officials realized very quickly that the Chinese military had carried out a massacre ordered by top officials who feared the public expression of dissent. They also document the mixed U.S. response to the massacre, on the one hand, sheltering a protestor, and on the other, trying to keep open lines of communication with Chinese authorities and to maintain flows of U.S. investment. As part of an ongoing brutal crackdown of internal dissent, Chinese authorities have carried out a harsh policy of history suppression, forbidding on-line or other discussions of the events at Tiananmen Square. In light of that it is worth recalling what U.S.  government officials learned at the time and how they assessed Beijing’s response to internal dissent.

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Presidential Memo “Effectively Amends” EO 13526: FRINFORMSUM 5/30/2019

May 30, 2019

Trump Memo “Effectively Amends” EO 13526 to Transfer Limited DNI Authority to AG Barr

President Trump recently signed a presidential memo that “effectively amends” Executive Order 13526 on classification of national security information to grant Attorney General William Barr the “authority of the Director of National Intelligence to declassify intelligence information concerning the 2016 election.” Steve Aftergood reported the change on his Secrecy News blog, and notes that while the presidential memorandum only applies to AG Barr and not his successors, “the move represents a functional demotion of the Director of National Intelligence and a partial transfer of his authority to the Attorney General.” No explanation was given for the change and it is unclear whether the Information Security Oversight Office (ISOO), which is responsible for the government-wide security classification system, was consulted.

Mar a Lago Intruder Had No Trouble Getting Past Secret Service

An 18-year-old college student staying at a neighboring resort had no trouble getting by the Secret Service and into Mar-a-Lago while the President was staying there for Thanksgiving, according to court documents. The student, Mark Lindblom, was sentenced to a year probation and a $25 fine for “entering or remaining in a restricted building.” The security lapse comes a month after a Chinese national carrying a thumb drive full of malware was allowed to enter the club. The recent security incidents are especially troubling considering revelations made during the National Security Archive’s lawsuit for access to the White House visitor logs – that “There is no system for keeping track of Presidential visitors at Mar-a-Lago.”

Inside Argentina’s Killing Machine: U.S. Intelligence Documents Record Gruesome Human Rights Crimes of 1976-1983

On August 20, 1976, Argentine security personnel dynamited the bodies of thirty people – ten women and twenty men – who had been detained by the Federal Police and executed in the town of Pilar, north of Buenos Aires. The explosion scattered human remains over a wide radius. This gruesome display of repression was intended to send a bloody message to other alleged militants to cease their activities five months after the military coup, according to a CIA intelligence report, one of two dozen extraordinary records posted today by the National Security Archive. But military junta leader General Rafael Videla was “annoyed that the bodies were left so prominently displayed,” sources told the CIA, because it “reflects adversely on the good name of Argentina.” Not that Videla opposed the mass murders, noted the CIA. “Videla is in agreement that subversives should be killed, but [believes] that the entire matter should be dealt with discreetly.”

“These documents provide a riveting account of the Argentine military’s killing machine and its campaign to kidnap, clandestinely detain, torture, kill, and disappear thousands,” said the Archive’s Carlos Osorio. Today’s posting is a small selection from a special “Argentina Declassification Project” authorized by President Barack Obama in connection with the 40th anniversary of the military coup in 2016 and completed by the Trump administration in April 2019. It is incredibly rare to see the CIA cables in particular, the likes of which the agency regularly hides behind its Operational Files exemption. A final, historic transfer of 7,500 CIA, FBI, DOD, NSC, and State Department records to the Argentine government took place on April 12, 2019.

Imminent Threat to Guatemala’s Historical Archive of the National Police (AHPN)

The National Security Archive joins our international and Guatemalan colleagues in calling for the protection of the Historical Archive of the National Police (AHPN) of Guatemala, which faces new threats to its independence and to public access to its holdings. In a press conference on Monday, May 27, Interior Minister Enrique Degenhart signaled his intent to assert his agency’s control of the AHPN including the prospect of new restrictions on access to the archived police records and possible legal action against “foreign institutions” holding digitized copies of the documents. Degenhart made his statements as a crucial deadline approached to renew an agreement that for a decade has kept the archive under the authority of the Ministry of Culture and Sports. The agreement now appears to be in jeopardy.

The hollowing out of the AHPN is taking place at a time when justice and human rights initiatives are broadly under siege in Guatemala and follows months of uncertainty for the celebrated human rights archive, which has been institutionally adrift since its long-time director, Gustavo Meoño Brenner, was abruptly dismissed in August 2018.

Get the whole story here and learn how to take action to support the AHPN.

TBT Pick – The Guatemalan Police Archives

This week’s #TBT pick is a 2005 posting on the discovery of the Guatemalan Police Archives. As the Archive’s Guatemala Documentation Project director Kate Doyle wrote, “On July 5, officials from the Guatemalan government’s human rights office (PDH – Procuraduría de Derechos Humanos) entered a deteriorating, rat-infested munitions depot in downtown Guatemala City to investigate complaints about improperly-stored explosives. During inspection of the site, investigators found a vast collection of documents, stored in five buildings and in an advanced state of decay. The files belonged to the National Police, the central branch of Guatemala’s security forces during the war – an entity so inextricably linked to violent repression, abduction, disappearances, torture and assassination that the country’s 1996 peace accord mandated it be completely disbanded and a new police institution created in its stead.

The scope of this find is staggering – PDH officials estimate that there are 4.5 kilometers – some 75 million pages – of materials. During a visit to the site in early August, I saw file cabinets marked ‘assassinations,’ ‘disappeared’ and ‘homicides,’ as well as folders labeled with the names of internationally-known victims of political murder, such as anthropologist Myrna Mack (killed by security forces in 1990).”

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