Open Gov Groups Still Interested in OGIS Reviewing Agency Practice of Sending “Still Interested?” Letters; DHS’s Mobile FOIA App Misses the Mark, and Much More: FRINFORMSUM 7/9/2015

OIP releases new guidance for agency still-interested inquiries.

This week the Department of Justice’s Office of Information Policy (OIP), tasked with ensuring government-wide FOIA compliance, issued new guidance on agencies issuance of “still interested?” letters. These are letters agencies send requesters – often years after the request was made – to determine if the requester is still interested in the request being processed. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. The OIP guidance is, on its face, pretty good: it requires agencies to limit the instances in which they send such letters; it requires that agencies provide requesters a reasonable amount of time to respond to the query (30 days at a minimum); and it mandates that requesters should not be disadvantaged if they miss the letter’s deadline by only a “reasonable” amount.

The overall premise behind the “still interested” letters, however, is fundamentally flawed. There is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted. While the “still interested” letters can be useful, any guidance that condones an agency closing a FOIA request without legal authority provided by the FOIA is misguided and should be revised.

“As you are aware, OGIS’s review team determined that it will take a close look at this matter. “

The silence from the Office of Government Information and Services (OGIS), the FOIA ombuds office, on this issue is of additional concern. In response to several Archive requests for OGIS assistance concerning agencies’ practice of issuing such letters (and in some instance only allowing a requester 10 days to respond before closing the request), OGIS informed our office in November 2014 that “On October 30, 2014, a group of organizations including the National Security Archive contacted OGIS about agencies’ practice of sending still interested letters, citing EPA, among other agencies. As you are aware, OGIS’s review team determined that it will take a close look at this matter.” Eight months later OGIS has yet to take any action on this issue, and OIP has taken advantage of OGIS’s silence and issued guidance condoning the legality of a practice that has no legal basis in the FOIA.

The Department of Homeland Security (DHS) launched an app to submit FOIA requests this week – perhaps a little too quickly. According to Huffington Post Technology and Science editor, Alex Howard, “Instead of launching a better way for the public to make and track requests or teaming up with the Department of Justice to fund work on a universal FOIA request feature at the government’s openFOIA website, the federal agency that receives and responds to the largest number of FOIA requests in the country actually made the experience of submitting one worse.” Among the app’s sticking points are: the microscopic font; the keyboard obscures the text of the FOIA request being drafted; and the fact that the app doesn’t retain a user’s contact information. Additionally, “The app’s permissions, at least on the Android store, state that it requires access to your approximate location.” This is according to Reporters Committee for Freedom of the Press’ Adam Marshall, who went on to say, “There is absolutely zero reason for the DHS to have access to the location of my phone, and I’m not going to install an app from the federal government that allows for that functionality. FOIA is designed to ensure that the public knows what the government is up to, not the other way around.”

DHS FOIA funds would have been much better used to make its current FOIA website responsive to mobile browsers rather than creating a clunky, hard to use, unneeded app.

Last week the Senate Intelligence Committee approved legislation that would require social media sites to report content posted by suspected terrorists, although it doesn’t require the companies to remove the content. While the committee claims the bill, which doesn’t require companies to monitor their sites if they do not already do so, is a “pretty low burden,” it’s received criticism for being technically difficult – in part because “Social media sites generally do not monitor their sites for terrorism or any other content except child porn” – and vague in its wording. The legislation is contained in the 2016 intelligence authorization act and has not yet been voted on by the Senate.

A hack of the for-hire hacking company Hacking Team has revealed that the FBI, the DEA, and the Army have all bought the Italian company’s controversial software that allows “users to take remote control of suspects’ computers, recording their calls, emails, keystrokes and even activating their cameras.” The Intercept reported this week that emails, financial reports, and other Hacking Team documents show that the FBI’s Remote Operations Unit has been using the software since 2011, and that the CIA, the Pentagon’s Criminal Investigative Service, the New York Police Department, and Immigration and Customs Enforcement were all communicating with Hacking Team about potentially purchasing their software. Hacking Team reported that it had lost control of the controversial software in wake of the hack, saying “it believed anyone could now deploy its RCS software ‘against any target of their choice.’”

Multiple Somali and African Union officials have confirmed the existence of a secretive US drone base operating out of Kismayo, Somalia. These officials allege that, “a team of special operators from the Joint Special Operations Command, the elite U.S. military organization famous for killing Osama bin Laden, flies drones and carries out other counterterrorism activities” from the Somali base. The US has yet to acknowledge operating a drone base on Somali soil. The CIA’s “substantial presence” in Mogadishu was also recently reported by The Nation, which detailed the agency’s training of a clandestine Somali commando force called “Shield.”

Hammarskjold in 1953.

A United Nations (UN) panel has found that new evidence concerning the September 1961 death of UN Secretary General Dag Hammarskjold, whose plane was shot down over what is now Zambia, warrants further investigation. A 2013 UN inquiry uncovered “persuasive evidence that the aircraft was subjected to some form of attack or threat as it circled to land.” As a result, in 2014 Sweden, Hammarskjold’s home country, appealed to all UN member states to disclose unpublished documents on Hammarskjold’s death. This appeal was likely “a reference aimed largely at securing the declassification of American and British files, particularly intercepts thought to have been made at the time by the National Security Agency.” The NSA continues to withhold two of three 50-year-old documents requested by the Archive regarding the incident on national security grounds. Despite the new evidence and calls for further investigation into the crash, the NSA holds that “files classified as top secret from the National Security Agency would not be released,” a sentiment echoed by the British.

David E. Hoffman’s “The Billion Dollar Spy: A True Story of Cold War Espionage and Betrayal,” published this week, relies on 944 declassified CIA cables to help tell the story of Adolf Tolkachev, once the CIA’s most valued and successful spy in the USSR. Tolkachev, an engineer and specialist in airborne radar, provided the CIA with “documents and drawings had unlocked the secrets of Soviet radars and weapons research years into the future. He had smuggled circuit boards and blueprints out of his military laboratory.” Tolkachev spied for the CIA from 1979 through 1985, before ultimately being compromised, arrested, and executed. A selection of the declassified CIA cables on Tolkachev are available at davidehoffman.com.

Declassified documents recently published by the National Security Archive shed new light on the 2012 creation of the DOD’s Defense Clandestine Service, the expansion of Army and Air Force HUMINT operations since 2002, the work of the Iraq Survey Group, and much more. Read the whole story on the evolution of the Pentagon’s spy units through the Obama administration here.

Operation PBSUCCESS

This week’s #tbt document pick is chosen with the possible re-opening of the Dag Hammarskjold investigation in mind. This week’s pick is a 1994 CIA History Staff document by Nicholas Cullather entitled, “Operation PBSUCCESS: The United States and Guatemala, 1952- 1954,” and is a narrative history of the CIA’s role in planning, organizing and executing the coup that toppled President Jacobo Arbenz Guzmán on June 27, 1954. One portion of the document (page 85) describes international condemnation of the plan, noting that UN Secretary General Dag Hammarskjold charged that “the United States was completely at variance with the (UN) Charter.”

Happy FOIA-ing!