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GSA Hides Trump Transition Meeting Notes with FOIA’s Ex. 5, New DHS Guidance Expands Surveillance of Social Justice Protesters, and More: FRINFORMSUM 7/30/2020

July 30, 2020

Trump Administration Redacts Transition Meeting Notes

Thanks to the 2015 Presidential Transitions Improvement Act amendments to the 1963 Presidential Transition Act, each presidential administration must “establish a White House coordinating committee and council of agency transition directors six months prior to the election.” The council, which deliberates on what preparations the administration is making for a potential transition, met on May 27 – and the FOIA sleuths at Government Executive requested the meeting minutes from both the General Services Administration and the Office of Management and Budget.

GSA released one document – almost entirely redacted pursuant to FOIA’s widely-abused Exemption 5, often called the “withhold it because you want to” exemption. This discretionary exemption protects agencies’ “deliberative process” privileges, a wide carve-out that allows agencies to withhold “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public.

The Paulette Goddard Professor of Public Service at New York University, Paul Light, said, “If there’s anything that needs to be redacted that’s a sign that there’s something that shouldn’t be going on. This should be an open and fully transparent process.” Government Executive is appealing the “partial” denial.

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Former CIA Director Brennan Denied Official Records

In a sharp break from tradition, the CIA denied former director John Brennan access to his official records, “including his notes and any documents that he had reviewed and signed that were classified,” which he sought to compile his memoir. Brennan – a frequent Trump critic – reveals in his memoir, “Undaunted: My Fight Against America’s Enemies, at Home and Abroad” – currently slated to be published in October – that in August 2018, President Trump issued a directive allegedly forbidding anyone in the intelligence community from sharing classified information with him (that same month, Trump threatened to revoke Brennan’s security clearance, something that Brennan said never came to pass because there was no legal basis).

Mark Zaid, a lawyer who frequently represents government whistleblowers and former intelligence officials navigating the murky prepublication review process, called the move “unprecedented”.

In January 2020 Brennan wrote to current CIA director Gina Haspel, arguing that “It is impossible to avoid the conclusion that the Agency’s refusal to grant my request reflects the current administration’s desire to punish and retaliate against me for speaking out as a private citizen — an abuse of power designed to chill the exercise of my First Amendment rights”. Haspel has not responded to the letter.

New DHS Guidance Expands Surveillance of Social Justice Protesters

New, unclassified Department of Homeland Security guidance reported by Lawfare authorizes DHS employees to collect information on protesters who threaten to damage statues or memorials, regardless of whether they are on federal property. The undated guidance comes as protesters are targeting and removing Confederate statues across the country. The expansion to include non-federal property is a significant expansion of Executive Order 12333, “United States Intelligence Activities,” which has traditionally been used to protect landmarks from potential terrorist attacks. The three-page memo, from the Office of Intelligence and Analysis, is entitled “Job Aid: DHS Office of Intelligence & Analysis (I&A) Activities in Furtherance of Protecting American Monuments, Memorials, Statues, and Combatting Recent Criminal Violence.”

Paul Rosenzweig, senior fellow at the R Street Institute and former DHS official during the W. Bush administration, told the Washington Post that the guidance is “a complete misapplication of existing authorities” and that President Trump “is morphing DHS into his private little rogue, secret army.”

Argentina’s House of Horrors: CIA Document Leads Human Rights Investigators to Previously Unidentified Clandestine Torture Center

Forty-four years after the Argentine military began disappearing thousands of citizens following the March 24, 1976, coup, human rights investigators have located one of the first clandestine torture sites used by state intelligence operatives. The clandestine center was identified after the declassification of thousands of U.S. intelligence records last year, among them a secret CIA report on the disappearance of an Argentine diplomat which stated that he had been kidnapped by agents of the State Intelligence Secretariat (SIDE) and “taken to a house at Bacabay (sic) 3570 in the Federal Capital which SIDE rents and uses for official operations….”

The National Security Archive first called attention to the CIA document, entitled “Kidnapping and Assassination of Argentine Ambassador to Venezuela by a Group Associated with Argentine State Intelligence Secretariat (SIDE) Without SIDE Knowledge or Authorization,” by posting it on the day it was declassified, April 12, 2019. The Archive recently re-posted the formerly secret CIA cable, along with a State Department report on U.S. citizen Mercedes Naveiro Bender, who was kidnapped in May 1976 and held at the Bacacay house, according to a new investigative report by federal Judge Daniel Rafecas.

“Without the declassification of this document perhaps we would never have been able to identify this clandestine center,” said Albertina Caron, an assistant to Judge Rafecas. The discovery of the Bacacay facility, she noted, has vindicated victims who had described the house of horrors in testimony over the years. “For dozens of survivors,” Caron said, locating the place where they were tortured after more than four decades “has provided a catharsis.”

Since the discovery of the Bacacay house, human rights advocates have stepped up pressure on Argentina’s new president, Alberto Fernandez, to order the declassification of all remaining Argentine intelligence records from the period of dictatorship.

The U.S. Nuclear Presence in Western Europe, 1954-1962

Recent debates over U.S. nuclear weapons in Western Europe make it worth looking at how those forces got there in the first place. In the 1950s, when fear of Soviet military power was at its height, NATO allies like West Germany and Italy were remarkably compliant to U.S. wishes regarding the storage of nuclear armaments on their soil – and ultimately their potential use in a European war – according to newly released State Department and Defense Department records posted by the Archive. The governments in Bonn and Rome made no objections when Washington came calling and did not even pose questions about when or how the weapons might be used.

Other governments, notably France, did raise concerns but sometimes very different ones. In one important new document reporting on a sensitive North Atlantic Council meeting from October 1960, the Greeks wondered whether the Americans would consult with their allies before resorting to nuclear war, while the French, who wanted their own force de frappe, told the group their worry was Washington might not use their weapons at all in a crisis.

The posting provides a significant window into the delicate issues surrounding the creation and management of the nuclear stockpile in Europe.  Much about this topic is still classified. Along with allied perspectives, the documents describe inter-agency disputes between State and Defense over issues such as whether to grant certain allies’ custody over the weapons.

New Digital National Security Archive Collection Publishes Thousands of Declassified Nixon and Ford President’s Daily Briefs

The National Security Archive, with our partners at the scholarly publisher ProQuest, has published a new collection of declassified President’s Daily Briefs (PDBs) from the Nixon and Ford administrations. The collection, The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977, offers researchers an unparalleled look into daily intelligence briefings provided to the White House by the CIA from 1969 to 1977.

The new comprehensive 28,300-page collection adds 2,527 documents to the Digital National Security Archive’s ongoing procurement of PDBs, which are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know. The PDBs are so sensitive that CIA Director George Tenet once claimed they could never be released for publication “no matter how old or historically significant it may be,” and former White House Press Secretary Ari Fleischer described the document as “the most highly sensitized classified document in the government.”

The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977 compliments the substantial collection of Archive documents from the Nixon-Ford era. Previous DNSA collections on the Nixon-Ford presidencies include “The Kissinger Transcripts: A verbatim Record of U.S. Diplomacy, 1969-1976, “The Kissinger Telephone Conversations: A verbatim Record of U.S. Diplomacy, 1969-1977”, and  The Kissinger Conversations, Supplement: A Verbatim Record of U.S. Diplomacy, 1969-1977.

 

New Digital National Security Archive Collection Publishes Thousands of Declassified Nixon and Ford President’s Daily Briefs

July 27, 2020

By Claire Harvey 

The National Security Archive, with our partners at the scholarly publisher ProQuest, is publishing a new collection of declassified President’s Daily Briefs (PDBs) from the Nixon and Ford administrations. The collection, The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977, offers researchers an unparalleled look into daily intelligence briefings provided to the White House by the CIA from 1969 to 1977.

The new comprehensive 28,300-page collection adds 2,527 documents to the Digital National Security Archive’s ongoing procurement of PDBs, which are Top Secret documents containing the most current and significant intelligence information that the CIA believes that the President needs to know. The PDBs are so sensitive that CIA Director George Tenet once claimed they could never be released for publication “no matter how old or historically significant it may be,” and former White House Press Secretary Ari Fleischer described the document as “the most highly sensitized classified document in the government.”

PDBs highlighted in this collection provide insight into the development of U.S. policy in response to major world events, security threats, and geopolitical conflicts of the Nixon-Ford era, many of which continue to influence global politics half a century later. The vast array of topics covered by the newly-declassified documents includes:

  • the prosecution of the Vietnam war, evolution of the Paris Peace talks, U.S. withdrawal, and the fall of Saigon;
  • the Laotian civil war;
  • the Cambodian civil war;
  • leadership changes in the Soviet Union and China;
  • détente and arms control negotiations, such as the Strategic Arms Limitation Talks;
  • Richard Nixon’s visit to China;
  • Soviet military aid to the Middle East and Africa;
  • the 1973 Arab-Israeli War and Middle East peace negotiations;
  • the Jordan crisis;
  • the Lebanon civil war;
  • the escalation of international terrorism;
  • the Cyprus crisis and aftermath;
  • elections, coups, and civil unrest in Latin America, including the Chilean coup d’état;
  • the Carnation Revolution in Portugal and its impact on decolonization of Africa;
  • the Sino-Soviet dispute;
  • the Bangladesh revolution and the India-Pakistan war;
  • independence movements in Angola, Rhodesia, and Zimbabwe;
  • and the space race.

The dynamic collection showcases how the intelligence community fulfilled its most critical task– keeping the President informed. President Nixon, however, may have never even read the briefings included in this collection. His de facto intelligence advisor Henry Kissinger prepared a memorandum that was appended to the PDB each day, offering the President a summary of events Kissinger thought were of the most importance.

The documents in this collection were released by the Nixon Library in Yorba Linda, California in 2016, but only after years of litigation with the CIA. In 2004, the Archive joined then- University of California, Davis professor Larry Berman in a suit against the CIA after the agency denied the release of two PDBs written for President Lyndon B. Johnson in the 1960s. Although the ruling did not result in the release of the records, the Ninth Circuit Court of Appeals shot down the CIA’s argument that the PDB should be categorically exempt from FOIA. Without a blanket exemption, the PDBs from the Nixon and Ford eras had to be considered for release. Despite this impetus of disclosure, the CIA took nearly 8 years to make the PDBs available to researchers and whole documents, passages, and pages remain heavily redacted.

The President’s Daily Brief: Nixon, Ford, and the CIA, 1969-1977 compliments the substantial collection of Archive documents from the Nixon-Ford era. Previous DNSA collections on the Nixon-Ford presidencies include “The Kissinger Transcripts: A verbatim Record of U.S. Diplomacy, 1969-1976, “The Kissinger Telephone Conversations: A verbatim Record of U.S. Diplomacy, 1969-1977”, and  The Kissinger Conversations, Supplement: A Verbatim Record of U.S. Diplomacy, 1969-1977.

Check out this new DNSA collection, or arrange for a free trial through your library today.

Judge Grants DOJ Extension in FOIA Suit for Mueller Report, FOIA Wins Release of COVID Data, ICE Gets “Security Agency” Designation, and More: FRINFORMSUM 7/16/2020

July 16, 2020

Judge Grants DOJ Extension in Mueller Report FOIA Case

Federal Judge Reggie B. Walton is granting the Department of Justice a one-week extension to provide answers justifying redactions it made to the Mueller Report in connection with a FOIA lawsuit brought by the Electronic Privacy Information Center, BuzzFeed News, and BuzzFeed News reporter Jason Leopold. Judge Walton, who has read the unredacted report and been critical of Attorney General Barr’s handling of its contents, said “These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that ‘all of the information redacted from the version of the Report released by the Attorney General’ is protected from disclosure by its claimed FOIA exemptions.”

A hearing on the redactions is currently scheduled for August 17 at 10 AM.

Appeals Court Rules Administrative Burden Not Enough to Keep Surveillance Court Records Sealed

Jason Leopold and the Reporters Committee for the Freedom of the Press scored a legal victory earlier this month in their quest to access judicial court records on the government’s use of surveillance tools frequently used in criminal investigations. Leopold has fought to unseal Stored Communication Act (SCA) warrants and pen register/trap-and-trace orders since 2013, but in 2018, District of Columbia District Court Judge Beryl Howell ruled that the administrative burden of releasing the entire body of surveillance records was too great, and ordered the government to release only a small sample of the records.

Leopold and RCFP appealed, and this month the U.S. Court of Appeals for the District of Columbia overturned part of the lower court ruling. Judge Merrick Garland authored the ruling, arguing that “Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all”. Judge Garland also notes, “The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Production may be time-consuming, but time-consuming is not the same thing as impossible.”

FOIA-Released COVID Data Underscores Pandemic’s Racial Disparity

Black and Latinx Americans have been hit significantly harder by the COVID-19 pandemic than white Americans, this according to newly-released FOIA data. The Centers for Disease Control and Prevention data, which covers 1.5 million case records through May 2020, was won by the New York Times in a FOIA lawsuit and shows that these minority communities have an infection rate three times higher than their white neighbors. But the data, which is the most complete look yet at racial disparities of the pandemic, is far from complete – the Times notes “Not only is race and ethnicity information missing from more than half the cases, but so are other epidemiologically important clues — such as how the person might have become infected.”

ICE Designated a Security Agency

In a blow to transparency, the Trump administration has designated Immigration and Customs Enforcement a “Security Agency”. The security classification grants ICE employees the same status as intelligence agency officials and officials at keystone law enforcement agencies like the FBI and Secret Service. The designation, which applies to all ICE employees, “blocks from disclosure information that is typically public, such as name, job title, and salary.” The classification, which ICE argued for years was needed to protect its employees’ privacy, was granted on June 11, according to a June 26 memo signed by ICE head Matthew Albence.

Open The Government’s Policy Director, Emily Manna, notes that the privacy justification is a flimsy one, saying “The Freedom of Information Act already contains a sufficient exemption to protect legitimate personal privacy interests. Preventing the public from obtaining any information about ICE agents—who are public officials—is a violation of the public’s right to know and should be reversed immediately.”

The move also comes four months after the Trump administration designated Customs and Border Protection a Security Agency, signaling a possible shift away from the immigration agencies’ original mandates.

Justice for the Jesuits – NSArchive’s Kate Doyle Testifies in Historic Trial

More than three decades after the shocking execution of six Jesuit priests by the Salvadoran military, National Security Archive senior analyst Kate Doyle testified last week at the historic legal proceedings in Spain to hold senior officials accountable for the November 1989 atrocity. Acting as an expert witness, Doyle authenticated hundreds of declassified U.S. records that have been submitted as evidence to the Spanish tribunal in the case of the Jesuits.

“The U.S. documents provide a strong credibility, and a clear relevance to clarifying the crimes that were committed,” as Doyle, who directs the El Salvador Documentation Project at the National Security Archive, informed the court.

The legal proceedings against former Vice Minister of Public Security Col. Inocente Orlando Montano began in June 2020. Montano, who quietly left El Salvador in 2001 was discovered by human rights investigators living outside Boston in 2011. He was convicted of immigration fraud and, in November 2017, extradited to Spain to stand trial for his role in the Jesuit massacre.

Get the whole story here.

In Brief

  • Don’t miss Citizens for Responsibility and Ethics in Washington’s (CREW) Anne Weismann’s op-ed on FOIA. Weismann notes that while the ongoing pandemic and lack of leadership from the Trump administration have severely hampered many agencies’ FOIA offices, the situation is not beyond repair; she states, “The government as a whole must shift from a culture of secrecy and withholding to one of disclosure. Agencies must devote significant and sufficient resources to ensure timely processing of requests. And they must treat the FOIA as mission critical, not a responsibility that can be readily abandoned when meeting its requirements becomes inconvenient, or politically harmful. All of these are policy choices that an administration and agencies can make without requiring any legislative or regulatory changes.”

OIP Report Misleadingly Touts a Government-Wide FOIA Release Rate of 94.4%, Continued Surveillance of Black Lives Matter, and More: FRINFORMSUM 6/4/2020

June 4, 2020

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

OIP Report Says Fed Has Improved FOIA Processing

There is a new leader at the helm of the Department of Justice’s Office of Information Policy – but scant evidence in its latest summary of annual agency FOIA reports that the office is taking a new direction monitoring and “encouraging” FOIA compliance across the government. Despite longtime director Melanie Pustay’s departure last year – a director who Rep. Jason Chaffetz (R-Utah) accused of living in “la-la land” for testifying that she believed FOIA was being properly implemented – and the appointment of Bobby Talebian, OIP continues to tout misleading and unreliable FOIA statistics.

The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 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.

Other highlights from the report include:

  • The government received 858,952 FOIA requests in FY 2019, down slightly from FY2018’s all-time high of 863,729 requests.
  • Exemption 7(c) and 7(e) account for more than 50% of all exemptions applied to denied records or portions of records.
  • Backlogged requests have decreased from 130,718 in FY2018 to 120,436 in FY2019.
    • As a reminder, in 2008 President Obama instructed every agency to reduce its FOIA backlog by ten percent every year. As my dear former colleague Nate Jones notes in his article, FOIA: A Colossus Under Assault, only one agency did this – the Department of Health and Human Services.
  • Four agencies account for 65% of all referrals (and associated delays): DOD, DOJ, DHS, and CIA.
  • The appeals backlog continues to grow – up to 5,087.
    • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
  • Agencies reported collecting $2,547,638 in FOIA fees – totaling less than .5% of total FOIA costs. 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.
  • Agencies spent nearly $38,842,948 in FOIA litigation. Put another way, agencies lost 15x as much money fighting bad FOIA decisions in court as they collected in FOIA fees.

As always, this year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure. If agencies are looking for guidance on how, 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.

Continued Surveillance of Black Lives Matter

The murder of George Floyd by Minneapolis police officers has sparked global protests against police brutality and has brought Black Lives Matter back to the forefront of the political debate. Readers who remember the FBI’s COINTELPRO – a series of domestic surveillance projects targeting political organizations the bureau deemed subversive – likely will not be surprised to learn that BLM has been the subject of government surveillance nearly since its inception. Here is a by-no-means complete list of resources on the subject:

  • Buzzfeed News’ Jason Leopold and Anthony Cormier report that in June 2020 the Justice Department gave temporary permission to the Drug Enforcement Administration to “‘conduct covert surveillance’ and collect intelligence on people participating in protests over the police killing of George Floyd.”
  • In 2019 a delegation of organizations led by MediaJustice met with members of Congress to seek transparency on the FBI’s surveillance of racial justice movements and the “targeting of Black activists through the use of threat designations like ‘Black Identity Extremist.’” As the MediaJustice press release notes, an August 2017 FBI intelligence assessment, entitled “Black Identity Extremists Likely Motivated to Target Law Enforcement Officers,” was sent to nearly 20,000 law enforcement agencies across the country.
    • Just Security reports in June 2019 that, “FBI Counterterrorism Division Director Michael McGarrity had admitted under questioning that the FBI could not cite a single example of a murder that could be linked to any African American activist group, including Black Lives Matter. He also claimed that the Bureau had eliminated the entire category of ‘Black Identity Extremists’ from its lexicon.”
  • NYPD emails released in 2019 show substantial surveillance of Black Lives Matters between November 2014 and January 2015.
  • In 2016 Jason Leopold won the release of FOIA documents showing that the Department of Homeland Security monitored social media for “intelligence” concerning potential terrorist activity during the Baltimore protests of the death of Freddie Gray while in police custody.
  • Documents released to MuckRock “show that the FBI helped local law enforcement monitor and police at least two Black Lives Matter protests in July 2016.”
  • DHS FOIA releases to Leopold show that in 2014 the agency worked “on a plan to ‘plug’ federal officers into protests to ‘perform surveillance’ and ‘collect intelligence in the crowd’” protesting the shooting death of unarmed black teenager Michael Brown by police officer Darren Wilson in Ferguson, Missouri.
  • More FOIA releases, this time to The Intercept, provide more details on DHS’ regular monitoring of Black Lives Matters since Ferguson.

PIDB Report on Modernizing Classification System

The Public Interest Declassification Board’s (PIDB) latest recommendations can be found in the new report, A Vision for the Digital Age: Modernization of the U.S. National Security Classification and Declassification System. The board’s recommendations are – as always – good, and underscore the reality that without a radical overhaul, the government’s Cold War-era approach to secrecy and declassification will cripple it in terms of safe-guarding necessary secrets and declassifying the information the public and policy-makers need in the 21st century. PIDB’s technological recommendations, like adopting a system-of-systems approach to streamlining technological requirements (and acquisitions), are particularly good, as is the Board’s recommendation that the the National Declassification Center be further empowered vis-à-vis originating agencies.

The report does not, however, address several large structural issues. Steve Aftergood points out that chief among the unresolved problems is “the criteria for determining what is properly classified and what must be disclosed.”

The Board is hosting a virtual public meeting tomorrow, June 5, at 11 AM.

2nd Circuit Helps White House Hide Visitor Logs

The 2nd Circuit Court of Appeals recently ruled against the National Security Archive’s lawsuit to restore the routine disclosure, under the Freedom of Information Act (FOIA), of the White House visitor logs that were taken down by the Trump administration in early 2017.

The 2nd Circuit’s 22-page ruling concentrates on the ostensible intrusion on a president’s ability to receive confidential advice, and the supposed burden of using FOIA’s regular exemptions to process the logs for release, while never acknowledging that the Obama White House routinely published its visitor logs some 90 days after the visit – some six million such records in all – with no apparent hindrance on presidential activity.

The ruling highlights severe weaknesses in the Federal Records Act – which apparently does not preclude a president from converting agency records into presidential ones not covered by FOIA through the simple expedient of a memo of understanding – and in the Presidential Records Act – which provides extremely limited forms of external review for White House record-keeping and the lack thereof.

Overkill, Assured Destruction, and the Search for Nuclear Alternatives: U.S. Nuclear Forces During the Cold War

Seventy-five years after the bombings of Hiroshima and Nagasaki marked the start of the atomic era, questions about the value, danger, and morality of nuclear weapons continue to present a huge challenge for politicians, military strategists, and ordinary citizens.

As that freighted anniversary approaches, the National Security Archive’s Nuclear Vault has gathered a selection of primary sources that could be considered key to understanding the arc of U.S. nuclear policy during the crucial first four decades. The aim is to encourage broad discussion of the many facets of nuclear history grounded in direct evidence.

No doubt many readers will have their own ideas for what to include.  We welcome nominations and at a future date will publish an assortment of additional materials in an annex to this posting.

The “Irreplaceable” Chernyaev Diary

The National Security Archive marks what would have been Anatoly Sergeyevich Chernyaev’s 99th birthday with the publication for the first time in English of his extraordinary Diary for 1980. At the time of the writing, Chernyaev was Deputy Director of the International Department of the Central Committee responsible for the International Communist Movement (ICM) and fraternal parties. The diary traces the further decline of the top Soviet leadership, the emergence of strikes and other labor unrest in the Soviet Union in the midst of deteriorating economy, and the dark cloud of two invasions—one that already happened—Afghanistan, and one that Chernyaev fears might happen—Poland.

 

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

May 8, 2020

 

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

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

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

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

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

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

 

State Department Historical Advisory Report Slams DoD Performance Again

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

The FRUS series is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.” Yet the office published only two FRUS publications in 2019 – down from six in 2018 and eight in 2017. These volumes are:

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

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

Senate Judiciary Demands Answers from DOJ on FOIA Compliance During COVID

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

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

OGIS Hosts Webinar with CDC’s FOIA Shop During COVID

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

WaPo Sues State Department for COVID Cables

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

FOIA Wins Release of Historic OLC Opinions

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

FCC Net Neutrality Records

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

 

CIA Spymaster Frank Anderson, 1942 – 2020

April 6, 2020

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

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

By Claire Harvey

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

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

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

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

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

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

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

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

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

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

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

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

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

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

April 2, 2020

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

Appeals Court Rules in Favor of Forever Secrets

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

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

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

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COVID-19 FOIA Updates

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

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

Pentagon Wants to Make Spending Projections Secret

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

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

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

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

March 20, 2020

Sunshine Week Round-Up

GAO Report Released

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

The report’s key findings include:

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

Principal Deputy Associate Attorney General Claire Murray

Misinformation at OIP Event

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

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

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

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

601 Consecutive Pages Withheld under B5

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

What Instant Messages?

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

Sunshine Chat

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

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

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

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

Strengthening the Presidential Records Act

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

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

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

COVID-19 Transparency Resource

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

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

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

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

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

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

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

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

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

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

By Claire Harvey

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

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

Image: NARA FY2019 FOIA Report

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

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

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

 

 

 

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

February 21, 2020

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

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

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

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

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

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

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

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

Crypto AG – from Cyber to Condor

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

Southern Cone

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

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

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

Cyber Vault

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

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

Frank Anderson, 1942 – 2020

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

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

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