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Secret Hold Placed on Senate FOIA Bill, Limited Time to Suggest which CIA Operational Files Should be Removed from Exempted Status, and Much More: FRINFORMSUM 4/23/2015

April 23, 2015
"Without objection?" Not so fast. Senator Cornyn will have to overcome secret holds on the FOIA bill.

“Without objection?” Not so fast. Senators Leahy (pictured), Cornyn, and Grassley will have to overcome secret holds on the FOIA bill.

Unknown Senators are placing a secret hold on the Senate’s FOIA bill, S 337. The bill was introduced by Senator John Cornyn (R-Tx) and cosponsored by Patrick Leahy (D-Vt) and Charles Grasssley (R-Ia), the ranking member and chair of the Senate Judiciary Committee, and is virtually identical to the bill that passed the Senate via unanimous consent last session. The bill (now at risk due to the secret hold) would strengthen transparency by: increasing the independence of the FOIA Ombuds Office, the Office of Government Information Services (OGIS); improve access to digital records; codify a presumption of openness; require agencies to update their FOIA regulations within 180 days of the bills passage; and make clear that “unusual” FOIA requests (that are fewer than 50,000 pages) get the standard FOIA extension of 10 days.

In the past, transparency advocates have had to call every single Senate office to find out which Senator was holding up the bill, and why. Hopefully the hold will be lifted before requiring advocates to resort to such measures to improve the public’s access to information.

There is a limited-time-only chance to *suggest* which CIA operational files should be removed from their exempted status, a result of one of the most damaging B3 FOIA Exemption statutes ever passed. According to a recent notice published in the Federal Register, “The CIA is in the process of conducting the 2015 decennial review of its operational files to determine whether any of the previously designated files, or portions thereof, can be removed from any of the specified categories of exempted files.” The CIA Information Act of 1984 requires that the decennial review “include consideration of the historical value or other public interest in the subject matter of the particular category of files or portions thereof and the potential for declassifying a significant part of the information contained therein.” The comment period ends Friday, May 1.

The DEA has been in the news a lot this past year, including for an agent impersonating a young woman posting these photos of underage children as part of an investigation.

The DEA has been in the news a lot this past year, including for an agent impersonating a young woman posting these photos of underage children on Facebook as part of an investigation.

Michele Leonhart, the head of the Drug Enforcement Administration (DEA), is stepping down after reports surfaced of DEA agents having “sex parties” with prostitutes hired by Colombian drug cartels (the Justice Department, the DEA’s parent agency, even felt compelled to issue a memo to all employees reminding them not to solicit prostitutes, regardless of whether or not they were on duty, after the news broke). According to the New York Times, “Seven agents who admitted to the accusations were given suspensions of two to 10 days, and under harsh questioning from the House panel, Ms. Leonhart said that she had been powerless to take more aggressive action such as firing them or revoking their security clearances.” The DEA has also made headlines in the past year for: maintaining a database of “virtually all” Americans’ outbound overseas call records, even if the callers were not involved in any criminal activity, for two decades; initiating “a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country; and employing an agent who impersonated a young woman on Facebook and posted racy photos of her and pictures of her underage son and niece on the social media site as part of a drug investigation.

Hillary's email scandal does n't mean the State Dept. will get any better at preserving its e-mails.

Hillary’s email scandal does n’t mean the State Dept. will get any better at preserving its e-mails.

The State Department has no plans to implement an e-mail preservation program despite the uproar caused by news that Hillary Clinton used a private e-mail address and stored her e-mails on a private server while Secretary of State, which, although in breach of records keeping laws and best practices, likely preserved her e-mail better than the State Department could have given its paltry .oo61% e-mail preservation rate. The public State Department Strategic Plan for FY 2014 — 2016 lists transitioning e-mail to cloud computing (page 16) as a goal, but nowhere does it mention NARA requirements that by December 31, 2016, that “Federal agencies must manage all email records in an electronic format.”

NARA has released draft guidance on its e-mail management and storage program, Capstone, and is soliciting public comment. To this end, NARA is also hosting a public meeting for discussion of the draft schedule on May 21, 2015, from 10:00 to 12:00 at the National Archives, McGowan Theater, 700 Pennsylvania Avenue NW., Washington, DC 20408.

Amnesty International is accusing the Obama administration of granting “de facto amnesty” to those involved in the CIA’s torture program, lambasting the administration for taking no punitive measures against those involved since the release of the Senate Intelligence Committee’s report on the CIA program. Amnesty International is requesting that the Justice Department “reopen and expand its investigation” into the CIA’s secret rendition, detention and interrogation program and that the White House and other U.S agencies disclose the names, locations and dates of operations of all secret prisons operated by the CIA in the program.

Severe sentence likely for Sterling, but no jail time for Gen. Petraeus. Photo credit: Kevin Wolf/AP

Severe sentence likely for Sterling, but no jail time for Gen. Petraeus. Photo credit: Kevin Wolf/AP

Federal prosecutors are seeking a “severe” sentence, likely of 20 – 24 years given the guidelines, for ex-CIA officer and convicted leaker, Jeffrey Sterling. Sterling was found guilty in January of leaking classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to New York Times reporter, James Risen. The quick trial, long delayed by debates over whether or not the Justice Department would force Risen to testify, inevitably took less than two weeks (without Risen’s testimony). Prosecutors urged the judge in a federal filing “to make an example of Sterling in order to discourage other government employees with access to classified information from taking a similar course.” General David Petraeus, on the other hand, is pleading guilty today to a misdemeanor for providing classified information to his mistress and biographer, Paula Broadwell, and for lying to the FBI about the leaks. Petraeus will serve two years probation and receive a $40,000 fine.

A report recently issued by the lawyers’ group, the National Association of Criminal Defense Lawyers, is calling on Congress to ban evidence obtained through the misuse of a United States Postal Service program called “mail covers.” The program “records the information on the outside of letters and packages delivered to people suspected of criminal activity”, which the USPS keeps for 8 years, and is not subject to judicial review. An October 2014 USPS Inspector General audit revealed the agency approved 50,000 requests from law enforcement and its own inspectors to monitor Americans’ mail service in 2013 – about 20% of which were improperly approved. Documents obtained under the FOIA by the New York Times also depict a generally lax attitude towards the program’s oversight, and “that in many cases the Postal Service approved requests to monitor an individual’s mail without adequately describing the reason or having proper written authorization.”

Prosecutors in St. Louis dropped over a dozen charges in a violent robbery case this week “one day before a city police officer was to face questions about a secret device used to locate suspects.” The “StingRay” device at the center of the case is subject to a confidentiality agreement, itself the subject of increased attention, between the St. Louis police and the FBI. A recent Guardian article revealed one aspect of the non-disclosure agreement between local law enforcement and the FBI is “a clause forcing law enforcement to notify the FBI if freedom of information requests are filed by members of the public or the media for such information, ‘in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels.’”

The Information Security Oversight Office (ISOO) will be holding an Open House on May 8, 2015. The event will include an overview of both the Public Interest Declassification Board and the Interagency Security Classification Appeals Panel (ISCAP). ISCAP rules on mandatory declassification review (MDR) appeals, and ISCAP officials have overruled agency classification decisions more than 70 percent of the time since 1996. Attendance is free.

This week’s #tbt document pick is chosen with ISOO’s important declassification role in mind, and is ISOO’s 2010 Report to the President – annually one of the best tools researchers have to assess the U.S. classification system. The 2010 report found that, among other things, when it comes to classification, the majority of agencies don’t listen to the president.

Happy FOIA-ing!

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