DOD’s Got a Good FOIA Policy Chief but Will Renew Lobby for Bad New FOIA Exemption Anyway: FRINFORMSUM 1/7/2016

Most recent available data on DOD’s FOIA processing comes form FY 2014 and is available here: http://open.defense.gov/Portals/23/Documents/DoDFY2014AnnualFOIA_Report.pdf.

Defense Department Chief of FOIA Policy, Jim Hogan, has seen some incredible documents over the course of his 20-year-career reviewing and processing FOIA requests. He reviewed a WWII-era document signed by Hollywood star and Navy intelligence officer, Lieutenant Commander Douglas Fairbanks, Jr. He saw “papers signed by Lieutenant Colonel Colin Powell when he was a White House Fellow at OMB during the Nixon Administration.” And he sees public awareness of FOIA experiencing something of a Renaissance – which has its complications.

Hogan recently told MuckRock’s Mike Morisy, “I don’t know if the public quite really understands what [FOIA] means, how they can take advantage of it, and also, I think their expectations are, as you know, I make a FOIA request, I should be able to get this stuff within a few weeks.” This expectation – which is bolstered by the E-FOIA amendment’s requirement that agencies process FOIA requests in 20 working days – is bound to cause consternation; the average processing time for “processed perfected” complex FOIA requests across the DOD in FY 2014 was 97 days (the DIA takes 1,345 days on average, the NSA 425), and the average time for pending perfected requests is much higher – 408 days.

Hogan says of the delays – which are compounded by finite resources – “We action officers share the same frustrations that FOIA requesters do.” Hogan argues that making FOIA officers and other agency components aware of available technology that can help streamline FOIA processing is key to combating the current FOIA backlogs. Another key? Embracing the “release to one, release to all” pilot program, which the DOD is participating in under Hogan’s direction along with six other agencies. (Adam Marshall of Reporters Committee for the Freedom of the Press has published an excellent rundown of the pilot program here.)

While the public is fortunate that the DOD’s FOIA Policy team, which oversees one of the largest FOIA programs in the federal government, is committed to improving the quality of customers’ FOIA experience, it’s less fortunate that the DOD is gearing up again this year up to lobby for a new, unnecessary, and harmful FOIA exemption. Last year the agency unsuccessfully lobbied Congress to add a new exemption to the FOIA that would have allowed the DOD to “withhold information on military tactics, techniques, and procedures from release to the public” that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed. Steven Aftergood notes the proposed exemption “stops making sense where DoD ‘tactics, techniques and procedures’ are themselves the focus of appropriate public attention” – like interrogation techniques and offensive cyber operations that should be subject to vigorous public debate.

The DOD is also likely to re-introduce an amendment to nullify the 2011 Supreme Court decision in Milner v. Department of the Navy. The decision “significantly narrowed” the scope of FOIA’s Exemption 2, which concerns information related solely to the internal personnel rules and practices of an agency, and the DOD wants to “reinstate the pre-Milner status quo with its more expansive withholding authority.” The DOD cited Exemption 2 165 times agency-wide in FY2014; I would provide a point of comparison from 2010 or 2011, however the links to these DOD annual FOIA officer reports on the Department of Justice’s Office of Information Policy website are broken. Aftergood reports, “the proposed Milner amendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.”

The IG report will show that the State Department’s FOIA Office shares some of the blame in the Clinton email scandal. Photo credit: Steven Senne/AP.

The State Department Inspector General released a report today showing that the agency’s FOIA office gave an “inaccurate and incomplete” no-documents response to a FOIA request concerning Hillary Clinton’s email usage. In 2012, after learning EPA administrator Lisa Jackson used “an alias email at work with the name ‘Richard Windsor,’” Citizens for Responsibility and Ethics in Washington (CREW) filed a FOIA request for “records sufficient to show the number of email accounts of or associated with Secretary Hillary Rodham Clinton.” Troublingly, State’s FOIA office told CREW that it had no documents on the subject of their request, even though Cheryl Mills, Clinton’s Chief of Staff, knew both of Clinton’s personal email account and the FOIA request, and advised a close aide to keep an eye on it. The report also finds that the secretary’s office lacked written procedures for handling FOIA requests, that some requests lingered in a queue for more than 500 days without a reply, and that mistakes made while Clinton was in office were “part of a long-standing problem stretching back through previous administrations.”

The State Department released its latest batch of Hillary Clinton emails on New Years Eve. Among the 5,000 documents is a flowchart compiled by Clinton’s communications aide, Philippe Reines, about who can ride with Clinton in her limo. Is the Ambassador present tolerable? If so, then yes, the “Ambo” can go in the limo. While some might see the “hours” Reines spent getting the formatting for the chart just right as a waste of time, what he produced is “the key to the relationships the secretary has with her close aides.” The State Department has until the end of January to release the remainder of Clinton’s 30,000 emails.

The flowchart.

The CIA’s declassified map of Groom Lake/Area 51.

Clinton joked on the campaign trail earlier this week that she would “get to the bottom” of investigating UFOs, likely exciting many UFO enthusiasts, and possibly even her campaign chair, John Podesta, who famously called for the declassification of all documents on aliens. Podesta was behind many of the Clinton administration’s important declassification decisions when he was Chief of Staff, including playing a role in E.O. 12958 that requires the declassification of most government documents over 25 years old. Unfortunately for many, Podesta tweeted that his “biggest failure of 2014: Once again not securing the #disclosure of the UFO files.” The government has, however released a number of documents on the Area 51 stealth facility in Nevada to the National Security Archive, including the first official acknowledgement of Area 51, which is contained in a CIA history of the U-2 spy plane.

The National Security Archive and the Project on Government Oversight’s FOIA fees survey is open for one more week only, so if you haven’t taken a few minutes to fill it out yet – please do! Doing so will provide a more representative view of FOIA fees for the government’s FOIA Advisory Committee, which recently distributed a similar survey – but only to federal FOIA processors. Now we need to hear from non-government FOIA stakeholders so that your views on FOIA fees can be cataloged and documented.

Open gov input needed!

The Supreme Court will consider a petition for certiorari in EPIC’s FOIA lawsuit against DHS for information on its “wireless kill-switch” tomorrow. EPIC filed the petition with the Supreme Court in August 2015 after the U.S. Court of Appeals for the D.C. Circuit’s ruled DHS could “withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies.” EPIC is also challenging the interpretation of FOIA Exemption (7)(F), “which permits withholding of law enforcement information that, if released, ‘could reasonably be expected to endanger the life or physical safety of any individual.’” The FOIA request at the bottom of the case seeks information on “the 2011 Bay Area Rapid Transit (BART) disruption of all cellular service inside four San Francisco transit stations for three hours in order to suppress a mass public protest against a BART officer’s lethal shooting of a homeless man, Charles Hill.” DHS first told EPIC it had no documents responsive to their request, only providing EPIC with a heavily redacted version of SOP 303 after EPIC sued in district court.

The cover page of the NSA’s Top Secret report on the USS Pueblo.

This week’s #tbt pick is chosen with reporting that sailors aboard the USS Pueblo – an American SIGINT ship captured by North Korean forces on January 23, 1968, and the only commissioned US Navy ship still in foreign possession – have renewed hopes for compensation for their 11 months in captivity. The Pueblo’s capture was an intelligence breach of enormous proportions, and, followed by the downing of a US reconnaissance EC-121 plane over the Sea of Japan in 1969 by a North Korean MiG-17, encouraged the Nixon Administration to develop contingency plans that would allow the use of tactical nuclear weapons against Pyongyang. Sailors from the Pueblo are pushing for compensation in the wake of Congress awarding $4.4 million to each of the American hostages held for 444 days in Tehran, although some worry that a lack of awareness about the incident may hamper their efforts. A 2014 Archive posting co-authored by Archive senior fellow John Prados and author Jack Cheevers shows, among other things, that “A small committee secretly appointed by LBJ to get to the bottom of the Pueblo debacle criticized the planning and organization of the ship’s mission. But the committee’s blunt report, which was initially to be given to Congress, was instead ordered destroyed by Defense Secretary Clark Clifford.”

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Happy FOIA-ing!