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EEOC’s Vacant FOIA Reading Room, Upcoming FOIA Advisory Committee Meeting, and Much More: FRINFORMSUM 10/8/2015

October 8, 2015


The Equal Employment Opportunity Commission (EEOC) recently announced the launch of its new FOIA portal, FOIAXpress, which “will speed up the processing of FOIA requests by allowing EEOC staff and FOIA requesters the ability to electronically exchange pertinent documents.” FOIAXpress replaces the agency’s in-house FOIA Tracking System and will allow requesters to monitor the status of their FOIA requests and appeals. The EEOC, which receives an estimated 18,000 FOIA requests a year, was designated an “E-Delinquent” in the National Security Archive’s latest E-FOIA Audit, which assessed agencies’ compliance with FOIA’s requirements for posting requested records online in electronic reading rooms, among other rubrics. The Audit found that the EEOC earned its E-demerit “by only maintaining a physical FOIA library, not even an Electronic Reading Room per the 1996 E FOIA requirements, making it impossible for the public to view previously requested records.” This gives the EEOC’s new FOIA portal, which also maintains an online FOIA Library, some much needed potential. The portal’s FOIA library, however, is currently unpopulated. For the EEOC to earn a better grade in online FOIA compliance, it will need to maintain a commitment to populating the portal’s FOIA library with FOIA-released documents, as well as proactive disclosure of documents likely to be of public interest –not just purchase new FOIA software.

The National Security Archive joined ten other open government and accountability organizations in submitting comments on the proposed Department of Homeland Security (DHS) FOIA regulations. As notes in a recent posting, “The letter expresses concerns that certain provisions of the proposed regulations could hinder the FOIA process, and provides recommendations on how the new provisions can go further to ensure greater access to public interest information.” The comments emphasize the need for DHS FOIA regulations to “conform with the Attorney General’s guidance on the presumption of openness.”

The FOIA Advisory Committee’s next meeting will be held on October 20. The Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration, consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Project Director Nate Jones – and previously identified proactive disclosure, fee issues, and oversight and accountability as their primary focus areas. Despite the Committee’s charge to help “modernize” the FOIA, its latest meetings have not been live streamed.  So to see the meeting live, you must attend in person.  Video will be posted online after the meeting’s conclusion.

Just Security’s Steve Vladeck recently highlighted USA Today‘s Brad Heath’s discovery that, in denying his FOIA request to the Justice Department for any OLC memos relating to the applicability of the Authorization for the Use of Military Force to uses of force against ISIL, the DOJ cited FOIA’s exemption 5 – the deliberative process exemption – rather than the national security exemption. Vladeck notes that the denial will likely be litigated, and reiterates that in January 2014 the D.C. Circuit’s decision in Electronic Frontier Foundation v. Department of Justice “took a rather expansive view of Exemption 5 as applied to OLC memos.”

WikiLeaks questions planted with 60 Minutes.

WikiLeaks questions planted with 60 Minutes.

A State Department email, released in a batch of Hillary Clinton’s emails, shows the Department “planted” anti-WikiLeaks interview questions for CBS’ 60 Minutes to ask Julian Assange during a 2011 interview. The email is from former State Department spokesman PJ Crowley and notes, “60 Minutes assures me that they raised a number of questions and concerns we planted with them during the course of the interview. We will be prepared to respond to the narrative Assange presents during the program.” Crowley resigned from his position a few weeks later after criticizing the treatment of Chelsea Manning, at that time locked in solitary confinement for her leak of documents to Assange’s organization.

The fallout from Hillary Clinton’s sole use of a personal email address and server while secretary of state continue to mount this week. The FBI has expanded its probe – the one it can neither confirm nor deny the existence of – of the security of Hillary Clinton’s private email server to a second technology company, Datto, which was charged with providing backup emails for Clinton’s email accounts beginning in May 2013. Datto “expressed concerns over the summer that the system was inadequately protected and vulnerable to hackers,” but its recommendation to upgrade the security on the backup systems was rejected by Platte River, the company managing Clinton’s account. A spokesman for Platte River said, “It’s not that we ignored them, but the FBI had told us not to change or adjust anything.”

Judicial Watch, in only one of nearly 40 ongoing FOIA lawsuits connected to Clinton’s email use, is pressing for the State Department’s “Undersecretary for Management Patrick Kennedy to appear in court to explain who greenlighted Clinton’s private server and who kept it running.” In yet another case brought by Judicial Watch, a federal judge declined the group’s request that the court ask Clinton to hand over any copies of the 31,000 emails Clinton deemed personal and deleted. District Judge Reggie Walton said, “I just don’t see what my authority under FOIA would be,” going on to note that, “It seems to me, having not used State Department devices … it would be difficult … for me to conclude… that the information contained on her private server … is information that the State Department possessed.”

The European Court of Justice this week “struck down an international agreement that allowed companies to move digital information like people’s web search histories and social media updates between the European Union and the United States.” The court found the agreement flawed because it granted the US government too much authority to access Europeans’ online information. The ruling comes after the Director of National Intelligence’s General Counsel, Robert Litt, penned an op-ed for the Financial Times in which he argued that the US does not indiscriminately survey European’s private data. Of PRISM, one of the National Security Agency’s (NSA) bulk surveillance programs revealed by former NSA contractor Edward Snowden, Litt said, “Prism is focused and reasonable. It does not involve ‘mass’ and ‘unrestricted’ collection of data.”

The Pentagon, thanks to a FOIA request, recently released 82 pages of records on contamination on the US’s military base in Okinawa, believed to be “the first time such comprehensive records regarding U.S. military contamination in Japan have been made public.” The documents – which date from the 1970s through the 1990s – reveal “mass deaths of sea life, burials of toxic chemicals and the possible exposure of base workers at U.S. Marine Corps Camp Kinser in Urasoe, Okinawa Prefecture. The documents also highlight the frustrations of the U.S. military as it struggles to tackle contamination in the face of previous inept cleanups and bureaucratic obstacles.”

The Century Foundation’s Barton Gellman has a terrific — if not depressing — posting on the effects universities forming relationships with the government to perform classified research has on scholarship. Gellman recounts a recent incident in which Purdue University scrubbed all references to a 90-minute presentation he made about the NSA and Edward Snowden for the university’s “Doom and Gloom” conference on the pretext that some of the slides contained material — that, while readily publicly available, is is still classified. After the incident Eugene Spafford, a Purdue professor, wrote Gellman: “We have a number of ‘junior security rangers’ on faculty & staff who tend to be ‘by the book.’ Unfortunately, once noted, that is something that cannot be unnoted.” Gellman notes, “Now the security apparatus claims jurisdiction over the campus (‘facility’) at large. The university finds itself ‘sanitizing’ a conference that has nothing to do with any government contract. Where does it stop? Suppose a professor wants to teach a network security course, or a student wants to write a foreign policy paper, that draws on the rich public record made available by Snowden and Chelsea Manning? Those cases will be hard to distinguish from mine.”

Nixon's Nuclear Specter - The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War.

Nixon’s Nuclear Specter – The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War.

This week senior Archivist William Burr and Professor Jeffrey Kimball will be discussing their new book, Nixon’s Nuclear Specter – The Secret Alert of 1969, Madman Diplomacy, and the Vietnam War, at an event hosted by the Wilson Center’s Cold War International History Project. In addition to an extensive use of declassified documents, the book draws on research in participant interviews “to unravel this intricate story of the October 1969 nuclear alert. [The authors] place it in the context of nuclear threat making and coercive diplomacy since 1945, the culture of the Bomb, intra-governmental dissent, domestic political pressures, the international nuclear taboo, and Vietnamese and Soviet actions and policies.”

A declassified cable from the US Embassy in Mexico City – obtained by the Archive under the FOIA – shows US Ambassador to Mexico Earl Anthony Wayne saying that “evidence of heavy-handed police tactics” was “strong and disconcerting” after a 2011 clash with student protestors from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded. The cable is the focus of an article published this week by the award-winning team of investigative journalists at Mexico’s Aristegui Noticias.

Prelude to Iguala: "Heavy-handed police tactics" used against Ayotzinapa students in 2011

Prelude to Iguala: “Heavy-handed police tactics” used against Ayotzinapa students in 2011

This week’s #tbt pick was inspired by an OGIS Twitter trivia question, which asked where the text of the original FOIA is kept. In response, former House legislative director Anthony Clark noted a little known piece of FOIA history – that the FOIA we think of as original was repealed before it became effective.

Happy FOIA-ing!

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