The National Security Archive’s FOILIES Nominations

15 agencies get a shot at redacting information.

The National Security Archive nominated five particularly bad FOIA responses for the inaugural FOILIES Awards – presented for the most “extraordinary and egregious” FOIA request responses – and we are posting them today along with two additional responses worthy of “dishonorable” mentions. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards will be announced on Thursday, March 19th, at a happy hour jointly hosted by EFF, the Sunlight Foundation, and MuckRock from 5-7 p.m. at Lost & Found in Washington, DC.  (I’m swinging by after my free, open to the public, presentation on how journalists, researchers, and the public can file effective FOIA requests –So there is definitely time to do both!)

The National Security Archive’s FOILIES Nominations

1. Category: Referral Merry Go Round Insanity

Description: A ten-year-old request about School of the Americas training manual evaluations to the Department of Defense Inspector General was recently released in part to the Archive.  But even a decade later, the DOD IG is still unable to finish its work.  Rather, it is passing the buck on (referring) portions of the documents to fourteen(!) different agencies so they can get a crack at redacting information as well.  Who knows how long it will take fourteen more FOIA shops to finish this request. Another decade? Longer? This beats the current known referral record by one.

2. Category:  Shooting the Classification Moon

Description: A six-year-old request to the Air Force for a report on Able Archer 83 Shot the Classification Moon.  Executive Order 13526, which governs classification, states nine reasons why information older than twenty-five years may remain withheld from the public.  It’s unusual for a historic document to merit even one or two of these stipulations. But the Air Force is making the never-before-seen claim that some sections of its report on the 1983 Able Archer exercise are exempted by all nine.  These thirty-year-old passages, if we believe Air Force Declassification Review Manager Penny Jenkins, contain information on: human intelligence (HUMINT), WMDs, cryptology, “state of the art” weapons systems, “war plans that remain in effect,” foreign relations, presidential protection, emergency preparedness, and information that would violate treaties.  Now that is a sensitive thirty-year-old document!

We appealed.

The document was from 1983. We definitely appealed.

3. Category: Insulting Secrecy

Description: The Department of Defense, working under NARA’s National Declassification Center, took ten years to respond to a declassification request for a fifty-plus-year-old memorandum by former Secretary of Defense Robert S. McNamara about the Missile Gap. Then declassifiers claimed “national security” Exemption One to withhold the memo.  The problem is, this memo was previously released in response to an earlier FOIA request and already officially published by the State Department’s historical series Foreign Relations of the United States, 1961-1963.

The same page – page 5 – from the same document, released 3 different times. From Left to Right: 2014 National Archives release with Department of Defense redactions, 1996 Foreign Relations of the United States release, and circa 1996 Department of Defense Freedom of Information Act Release.

4. Category: Extraordinary Long Wait for Records

Description: A seventeen-year wait for a response from the National Archives for four documents that are fifty years old – and still redacted. With not so much as an apology.  Part of the problem is that NARA does not have the authority to release other agencies’ documents.  But they should fight for it!  Their reputation is at stake.

5. Category: Silly Legal Arguments in Public Records Lawsuits

Description:  The CIA and the Department of Justice argued that a volume of a CIA history on the Bay of Pigs should be withheld under the Exemption Five “withhold it because you want to exemption” because it could “confuse the public“.  And won.  And then won again after our appeal was denied in the DC Court of Appeals. In reaction to this egregious argument and decision, both currently pending FOIA bills contain a clause ending the ability to use the “predecisional” Exemption Five at twenty-five years. (EFF’s David Sobel was our counsel on this)

“Dishonorable” Mentions

1. Dubious Secrets of the Cuban Missile Crisis

Description: Inane and contradictory declassification actions on military records of the Cuban Missile Crisis indicate serious flaws in the Defense Department’s declassification procedures for historical records. One of the biggest secrets of the crisis was that a deal involving the trade of Soviet missiles in Cuba for U.S. Jupiter missiles then deployed in Turkey, as well as Italy, was central to the diplomatic settlement. While this was disclosed years ago, the Defense Department refuses to acknowledge that the United States had missiles at Turkish or Italian bases. A Pentagon report recently released through a FOIA appeal to the National Security Archive includes several astonishing excisions, including one from Nikita Khrushchev’s “publicly announced message” on 27 October 1962, where he proposed removing Soviet missiles from Cuba if the United States “will remove its analogous means from [excised].” What Khrushchev said was “Turkey,” but on national security grounds the Pentagon would not declassify that word in a statement that was made to the world.

The Wikipedia article on Able Archer 83 the National Security Agency sent us in response to a FOIA request.

2. That Wikipedia Article You Wrote will be $60

Description: The National Security Agency responded to a 2008 FOIA request on the Able Archer 83 War Scare from Archive FOIA Project Director Nate Jones by stating that it had eighty-one relevant documents, but that all were exempt from release. Unhelpfully, the Agency did review, approve for release, stamp, and send Jones a printout of a Wikipedia article (that Jones had helped author), for a total of $60.