The Good, the Bad, and the Ugly: OGIS Challenges FEMA’s “Still Interested” Letters, Bad CISA Bill Taken up in Senate, and Drone Leaks Fill Official Disclosure Void: FRINFORMSUM 10/22/2015

Check back in December for follow-up.

The National Security Archive and other open government groups have repeatedly drawn attention to agencies’ use of “still interested” letters, which agencies send requesters – often after years of silence on the agency’s part – to determine if the requester is still interested in the request being processed. The Archive has also requested assistance from the FOIA ombuds office, OGIS, on the creeping use of these letters. Troublingly, the letters frequently state that if the agency fails to receive a response from the requester within an arbitrarily short amount of time, the agency will summarily close the request despite the fact that there is nothing in the FOIA itself that allows an agency to do so if it does not receive a response from a “still interested” letter.

While the Department of Justice’s Office of Information Policy (OIP) issued new guidance on these letters in July stating that agencies must provide requesters a reasonable amount of time to respond to the query (30 days at a minimum), the Federal Emergency Management Agency recently threatened to close out a two-year-old Cause of Action FOIA request if no response to their “still interested” letter was received after only 7 working days. OGIS “brought this instance of FEMA’s non-compliance with OIP’s new guidance to the attention of the Department of Homeland Security’s (DHS) Chief FOIA Officer, Karen Neuman. [OGIS] also suggested that DHS update its policy on the use of still interest letter to reflect OIP’s new guidance on the time they need to afford requesters when such letters are used.”

OGIS recently issued a good review of FEMA’s FOIA program, available here, which addresses the agency’s use of “still interested” letters, among other problems. OGIS will follow up on the status of its FEMA recommendations in January 2016, but it remains to be seen whether there will be any punishments or further action taken if FEMA ignores OGIS’ recommendations, on “sill interested” letters or otherwise.

The Senate will vote on CISA – the Cybersecurity Information Sharing Act of 2015 – this week, a “privacy invasive surveillance bill that must be stopped.” Frighteningly, the bill adds a new statutory exemption which would be unnecessarily broad, redundant, and could have unintended consequences.  Moreover, all potential exemptions to FOIA should be enacted only after full and fair consideration by the Judiciary Committee. As the Electronic Frontier Foundation notes in its call to action against the bill, CISA also “would grant companies more power to obtain ‘threat’ information (for example, from private communications of users) and disclose that data to the government without a warrant—including sending data to the National Security Agency. It also gives companies broad immunity to spy on—and potentially even launch countermeasures against—innocent users.” EFF’s helpful, easy to fill out “write your congressperson” link is available here.

CIA’s targeted killing program ripe for lawsuits, leaks. Photo: Ethan Miller/Getty Images

The ACLU filed its principal appeals brief in the FOIA lawsuit ACLU v. CIA this week, seeking the disclosure of 1) legal memos regarding the CIA’s use of drones and 2) the drone’s “summary strike data.” The lawsuit is the second chapter in a legal FOIA battle that began in 2010 when the ACLU filed a FOIA request with the CIA seeking “a release of official documents detailing when, where, and against whom the U.S. considers itself authorized to conduct drone strikes, as well as information illustrating how the attacks are consistent with international law.” The 2010 FOIA prompted a Glomar response from the CIA, neither confirming or denying the existence of a lethal targeted killing program despite numerous public officials’ reference to the program. The ACLU sued over the CIA’s Glomar response, and a three-judge panel in the D.C. Circuit ruled in 2013 that, “the CIA was asking it to accept a “fiction of deniability that no reasonable person would regard as plausible.” The panel ordered the CIA to process the ACLU’s FOIA request and to justify any withholdings to the district court.

The ACLU filed a second, narrowed FOIA request after the 2013 ruling, which is the subject of the current lawsuit, to which the CIA responded that it “had located a dozen final legal memoranda (one of which the government made public in redacted form), and ‘thousands of classified intelligence products responsive’” – all of which the CIA argued were exempt under the FOIA. In its appeals brief, the ACLU notes that the CIA has failed to demonstrate that the facts underlying the legal memoranda are classified and that the legal analysis can only be withheld if they are inexplicably intertwined with classified facts (such segregability was achieved, for example, when the DOJ’s published of the memo authorizing the killing of Anwar al-Aulaqi), and that the drone strike data is not protected under the FOIA’s sources and methods exemption.

Days before the ACLU filed its brief The Intercept published a series of stories on the drone campaign that were buoyed by leaked official documents. The ACLU’s Jameel Jaffer argued, “that whistleblowers like this would be less necessary — and probably less common, too — if the government were complying with the Freedom of Information Act. In passing that Act, Congress intended to guarantee the public access to information about government conduct while also protecting information whose disclosure would truly endanger national security. In practice, though, the government routinely withholds information that the FOIA requires it to disclose. On the rare occasion when courts enforce the FOIA over the government’s objections, the government often manages to delay release of information by months or years, and the public gets access to information only long after it most needs it.”

The Government Accountability Office – which is not subject to FOIA but “will usually entertain requests for records anyway” – recently published a list of titles of its restricted reports completed after September 30, 2014, “that have not been publicly released because they contain classified information or controlled unclassified information.” The list is hosted on a new website intended to inform members of congress and the public, but it will not publish classified titles or reports that focus on specific intelligence agencies. As Steven Aftergood of Secrecy News notes, “A listing of GAO restricted report titles from 1971-2011 was obtained and published by GovernmentAttic.org, which also obtained copies of the first page of each GAO report issued prior to 1972 that remains classified.”

The VA medical center in Phoenix (AP Photo/Ross D. Franklin, File)

A Veterans Affairs inspector general report has found the VA hospital in Phoenix “did little to respond to a severe staffing shortage as recently as April 2015” – long after a national scandal over “fudged” wait times erupted. The IG report found that hospital staff instead “canceled appointments for 3,200 urology patients, some of them for crucial follow-up tests, and never rescheduled them.” The IG report found that the lapse in care resulted in at least seven deaths, and recommends that the hospital ensure it is staffed adequately “to guarantee timely care.”

In 2013, shortly after Edward Snowden’s first revelations about the National Security Agency’s bulk domestic surveillance were published, NSA director Keith Alexander asked a hackers convention in Las Vegas what the agency could do to better protect Americans’ privacy and civil liberties. The solicitation was also shared on the NSA’s website, which directed people to email their ideas to the NSA. Vice News’ Jason Leopold filed a FOIA request with the NSA for the emails it received. And the NSA complied, releasing a grand total of 14 suggestions – most either not germane or technologically impossible. Credit to the NSA for releasing the innocuous documents – after only a two-year wait.

Graduate students working on any aspect of the Cold War interested in participating in the 2016 International Graduate Conference on the Cold War should submit their papers by January 24, 2016. More information on the Cold War Conference can be found here.

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Happy FOIA-ing!