Root Cause of FOIA Problems not Addressed, says OGP Report; Army Generals Discuss Delaying FOIA Response for PR Purposes, and Much More: FRINFORMSUM 10/1/2015

Civil Society Progress Report.

This week OpenTheGovernment.org released a progress report – with the contribution of the National Security Archive and 15 other civil society organizations – on the Obama Administration’s Open Government Partnership transparency commitments. The report finds that overall the Administration has failed to take advantage of the OGP platform and capitalize on transparency initiatives, noting that, “certain areas of secrecy continue to cast a dark shadow over the entire OGP process.” Concerning the Administration’s commitment to modernize the FOIA, the report laments that: commitments “have not addressed the root causes of the problems with the FOIA process”; the highly-touted consolidated FOIA portal fell “vastly short” of its potential; and that commitments “have not led to a measurable increase in the speed of disclosures or in the amount of information released, or a reduction in the high use of exemptions, such as b5, to withhold information.” OpenTheGoverment.org argues that in order for the US to meet its transparency benchmarks, the next National Action Plan should ensure that agencies update their FOIA regulations and adopt the key provisions included in model regulations, and include enforcement mechanisms to ensure that guidance on proactive disclosure is implemented.

A leaked Army document shows two generals discussing delaying a response to a New York Times FOIA request on concussions at West Point for public affairs reasons. The Times FOIA request sought information on concussions resulting from a mandatory boxing class, and Army surgeon general, Lt. Gen. Patricia D. Horoho, suggested that rather than promptly replying to the request, “trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.” An Army official who opposed encouraging other publications to run a more favorable story leaked the document to the Times. “After learning of the [leaked] document, the Air Force Academy and West Point quickly released concussion numbers.”  The Pentagon’s press secretary is currently looking into the issue, and the Archive will be watching this case develop to see if appropriate disciplinary actions are taken.

StingRay II device, Uncredited/U.S. Patent and Trademark Office, via Associated Press.

A growing number of state legislatures are passing laws requiring state and local law enforcement to obtain court orders to use StingRays, electronic devices that mimic cell phone towers “that can covertly track criminal suspects and is being used with little public disclosure and often under uncertain legal authority.” The ACLU reports that agencies in at least 21 states using StingRay devices or similar; Washington, Utah, Virginia, and California have already approved legislation requiring court orders for such devices, and thousands of cases in Maryland are being re-examined to determine if police deployed the technology legally. Vice News’ Jason Leopold recently published a non-disclosure agreement between the FBI and the D.C. Metropolitan Police Department (MPD) obtained under FOIA on the MPD’s use of the technology, in which the MPD agreed not to discuss any details about it and to alert the FBI “if the department learned that any technical details about the surveillance technology was at risk of being exposed during a judicial proceeding, MPD would contact the FBI so the bureau could ask MPD to ‘seek dismissal of the case’ in order to continue protecting the overall secrecy of the Stingray.”

Last week a federal judge “heard the first oral arguments in a case challenging the ‘upstream‘ bulk collection of data by the National Security Agency (NSA).” Government attorneys argued that the case – brought by the ACLU and several other prominent organizations – was “speculative” and filed a motion for dismissal. The judge, however, noted that forcing the plaintiffs to show standing in this case is “a very difficult burden,” going on to say that the government was effectively arguing that, “just because you all keep things secret, the constitutionality can’t be questioned”.

The Foreign Intelligence Surveillance Court recently appointed a public advocate “to weigh in on whether the government can retain millions of telephone records that it has collected in bulk since at least 2006.” Prior to the passing of the USA Freedom Act in June the government was the only party permitted to argue its case before the spy court; now, however, a public advocate is required “to argue opposite the government in cases deemed by the court to present a novel or significant legal issue.” The Court ruled in June that a public advocate is not needed in cases where “the legal question is relatively simple.”

House Oversight chair Chaffetz called the unauthorized disclosure “intimidating.” Brett Carlsen/Associated Press

The Secret Service, in a move that some say “threatens the integrity of the investigation”, is helping the Department of Homeland Security inspector general investigate how information on Rep. Jason Chaffetz (R-Utah) was leaked in the wake of his high-profile criticism of the agency.  Shortly after Chaffetz rebuked the Secret Service for its repeated failures in recent years, documents on his application to — and rejection from — the Secret Service in 2003 were circulated across the agency. After Chaffetz’s remarks, Secret Service assistant director Edward Lowery sent an email saying, “Some information that he might find embarrassing needs to get out,” continuing, “Just to be fair.”

According to reporting by the Washington Post, inspectors from the Secret Service internal affairs office sat in on more than 40 interviews about the leaks, in some cases contacting witnesses directly. The Secret Service’s involvement in its own investigation is problematic, in part because it “could deter internal whistleblowers from coming forward with additional allegations of misconduct for fear of retribution by their bosses.” Eric Feldman, who worked at four IG offices under both Democratic and Republican administrations, says the IG offices exist precisely to avoid this kind of conflict of interest. Feldman argues, “You just don’t do it. You don’t have the agency you’re investigating involved in the investigation.” The DHS IG’s office countered that, “generally speaking, it is not unusual” for the their office to receive help from internal affairs units within DHS. “Most of the Secret Service employees interviewed by investigators have been reprimanded, given one- or two-day suspensions or told they will face such disciplinary measures for accessing Chaffetz’s personnel file without a legitimate work reason, people familiar with the inquiry said.”

A Drug Enforcement Administration internal affairs log released under the FOIA shows agents routinely kept jobs despite serious misconduct. Out of 50 instances since 2010 where the DEA’s Board of Professional Conduct recommended an employee be fired, only 13 were actually terminated (and in some instances agents were reinstated by the federal Merit Systems Protection Board). None of the agents that attended “sex parties” in Colombia were fired, for example, and while the Board of Conduct recommended firing an agent for selling drugs, the agent received a 14-day suspension instead. None of the agents who left a college student handcuffed in a holding cell without food or water for five days were fired. James Capra, the former head of operations for the DEA, said “The general feeling throughout senior leadership at DEA was that it’s a ridiculous system.”

Google Chrome security team member Robert Sesek recently posted the Director of National Intelligence’s index of Intelligence Community Directives, which establish policies and standards for the intelligence community and that he obtained under the FOIA. Sesek notes “There are two ICDs not listed in the index that was returned via FOIA but are listed on the DNI’s website. Those two documents are also dated from 2015, and so if the released document was processed in 2014, that would explain their absence. In addition, the DNI’s website does not list the following two directives. It is unclear why these have remained unpublished.”

Archbishop Romero minutes after he was shot celebrating mass on March 24, 1980.

This week’s #tbt pick is chosen with Pope Francis’ recent beatification of slain El Salvadorian Archbishop Oscar Romero in mind. Today’s #tbt pick is a 2011 posting commemorating the 35 anniversary of Romero’s 1980 assassination by “by right-wing assassins seeking to silence his message of solidarity with the country’s poor and oppressed.” The posting contains a dozen documents that describe the months before Romero’s death, and is one of many Archive postings on the US government’s support for the brutal El Salvadorian regime, funneling billions of dollars to the tiny country to support the dictatorship at the expense of leftist groups supported by Cuba and the Soviet Union. One of the documents obtained by the Archive was recently featured in a Foreign Policy in Focus article on Salvadoran union organizer David Ayala-Zamora, who survived torture by US-backed security forces “and took his activism north of the border.” Ayala-Zamora calls being tortured the best experience of his life because “It taught me how committed I am in the struggle for justice. And it’s kind of fortified me in some ways, because you learn how much capacity you have in this body.”

Happy FOIA-ing!