Federal Judges Call Out DOJ, State Department for Lackluster FOIA Performance: FRINFORMSUM 2/11/2016

U.S. District Judge Ketanji Brown Jackson doesn’t trust the Department of Justice to faithfully review surveillance records requested under the FOIA for segregability. Jackson recently ruled that the agency must submit unredacted versions of “specific documents for ex parte submission and a private review by the judge” and explain why it withheld documents on internet surveillance in connection with a two-year-old FOIA case between the DOJ and the Electronic Privacy Information Center (EPIC). EPIC filed its initial suit in 2013 in connection with a request for “records about the pen registers and trap and trace devices used for the surveillance of telephone and internet activity”. Among the records sought are 25 semiannual reports required by the Foreign Intelligence Surveillance Act (FISA) “on the use of the surveillance devices, including information on the number of applications granted and modified under the FISA and the total number of installations approved and denied under emergency circumstances.” The semiannual reports also reportedly include FISA process improvements and “the National Security Division’s descriptions of the scope of the Foreign Intelligence Surveillance Court’s jurisdiction.”

The Defense Department insists that releasing 1,800 photos taken during criminal investigations into detainee abuse in Iraq and Afghanistan would endanger American service personnel serving abroad. In what the American Civil Liberties Union’s Jameel Jaffer called “selective disclosure”, the DOD released 198 photographs of detainee abuse, primarily of small cuts and bruises, taken during the investigations in response to a FOIA request filed by the ACLU in 2004 in the wake of the Abu Ghraib prison scandal. The 2004 request prompted the DOD to release a wave of documents about interrogation practices, only hitting a bump in 2009 with the impending release of the photos. The Obama administration initially planned to comply with an order to release the first batch of photos, but reversed course after backlash – and warnings from former defense secretary Robert Gates – that releasing the photos would endanger US service personnel. President Obama then “obtained legislation from Congress permitting the defense secretary to exempt the photos from disclosure under the information act. The reversal was an early milestone on secrecy policy for an administration that had promised to be the most transparent in history.”

U.S. District Court Judge Rudolph Contreras said in a hearing related to Vice News reporter Jason Leopold’s FOIA request for Hillary Clinton’s emails that the State Department “should expect to produce something on the 18th, if not sooner”. Contreras initially ordered the department to release all 54,000 pages of emails by January 29, however the department “overlooked more than 7,000 pages of messages in need of interagency review” and said it needed until the end of February to review the records for release; Contreras ordered State to file a detailed report by Friday on what caused the oversight. Leopold’s lawyers argued “that allowing State to drag out the release of the emails deprives voters in the Democratic primaries and caucuses of information they are entitled to have as they make up their minds.” Contreras said bluntly, “To state the obvious, these documents have a lot of public interest and the timing is important for the reasons stated by the plaintiff”. Contreras asked the government’s lawyer, Robert Prince, how many of the outstanding pages were done being reviewed, the answer being 570 emails.  “Let’s get those up by [next] Tuesday,” Contreras said; to which Prince replied, “Your honor, I don’t think that’s at all possible”.

State Department FOIA officers overlooking thousands of records responsive to FOIA requests “because they didn’t realize some records had been ‘retired’ to State archives and because they misunderstood the scope of some electronic files belonging to aides to former Secretary of State Hillary Clinton” is of additional concern. According to a new filing in a FOIA suit brought by Judicial Watch, “The IPS [Information Programs & Services] employees working on this FOIA request did not initially identify S/ES [Secretary of State/Executive Secretary] retired records as a location to search for potentially responsive records because they were operating with the understanding that, to the extent responsive records from the Office of the Secretary existed, they resided within S/ES. These IPS employees were unaware at the time that these shared office files had been retired”. The glaring oversight seems to confirm a recent DOS IG report 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.

The State Department Inspector General, after reviewing the communications of the last four secretaries of state, determined that classified emails were found in personal accounts belonging to Colin Powell and top aides to Condoleezza Rice. Representative Eliot L. Engel (D-NY) said in response to the investigation, “The private-email problem is not a Hillary Clinton problem. It’s a governmentwide problem that’s existed since the advent of email itself.” The two classified emails on Powell’s account originated from ambassadors and Powell claimed the contents are “fairly minor”, going onto say “I wish they would release them, so that a normal, air-breathing mammal would look at them and say, ‘What’s the issue?’” The New York Times erroneously reported that the classified emails are not eligible for release until 2036; however they can be released as soon as their contents are no longer deemed to harm national security, or when public interest in their release outweighs the potential harm in their release. No doubt Colin Powell would argue that day is today.

OpentheGovernment.org (OTG) and the American Society of News Editors have teamed up to draft a series of questions for 2016 candidates for federal office related to federal open government issues. As OTG  notes, “government transparency and secrecy have played a major role in the most salient political issues of this still nascent election cycle, ranging from FOIA requests on Flint’s water crisis, to debates on NSA whistleblower Edward Snowden, to questions on campaign finance. Still, while these issues are raised frequently in the midst of a high-profile controversy, candidates are rarely asked about their underlying open government beliefs and policies.” The questions, including queries of where candidates stand on FOIA reform legislation and what needs to be done to fix FOIA processing, can be found here, and are a great resource for editorial boards and reporters covering the campaigns.

The website governmentattic.org recently posted the National Archive and Records Association database of the 3603 records identified as “withheld in full” in the JFK Assassination Records Collection. The document was released in part under the FOIA, and lists the record number, series, and titles for thousands of – primarily FBI and CIA – records on the assassination. The disclosure comes at an interesting time; the  Kennedy Assassination Records Collection Act of 1992 (JFK Act) requires that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. Read more about the JFK Assassination Records and the enduring lessons from the Assassination Records Review Board here.

The top leaders of the Soviet Union discussed the case of controversial CIA spy Adolf Tolkachev during the Politburo meeting on September 25, 1986, according to the original Russian transcript and English translation recently published by the National Security Archive. The Russian original was first published online by the National Security Archive in 2015. The account directly contradicts allegations by former CIA historian Benjamin B. Fischer that Tolkachev “was the perpetrator of an elaborate KGB hoax”, or “a figment of the KGB’s creation and the CIA’s imagination”.

Guatemalan dictator Oscar Mejía Víctores died on February 1 at the age of 85. According to Archive senior analyst Kate Doyle, “Throughout his career, Oscar Mejía Víctores cut a classic figure as a loyal military officer, brutal strongman, and untouchable human rights violator.” Declassified documents in Doyle’s latest posting for Unredacted show the Reagan administration’s ambivalence towards Mejía Víctores, a man who believed international human rights groups like Amnesty International were guerrilla supporters, and once said that a US member of Congress who warned him about the country’s human rights record sounded “like a member of the EGP” (Ejército Guatemalteco de los Pobres—Guatemala Army of the poor, one of the four principal Guatemalan insurgent groups).

The Archive’s Peter Kornbluh met with Chilean foreign minister Heraldo Muñoz on January 20th in Santiago to discuss the effect of declassified diplomacy on human rights. Kornbluh’s latest book, Diplomacia Encubierta con Cuba: Historia de las Negociaciones Secretas Entre Washington y La Habana, co-authored by William M. LeoGrande and published in December in Mexico by Fondo de Cultura Economica, also received attention from Peru’s El Comercio newspaper. More about the book and Kornbluh’s work with declassified diplomacy can be found on the Archive’s website.

This week’s #tbt document pick is a Top Secret/Codeword “The Secretary’s Morning Intelligence Summary” of March 29, 1994, which recounts North Korean military officers threatening the U.S. with a possible preemptive strike if circumstances called for it: “This will not be a situation like the Iraq war,” U.S. officials were told. With DNI Clapper’s recent confirmation that Pyongyang has restarted the plutonium production reactor at Yongbyon, revisit the Archive’s 2013 posting on the perpetual struggle to understand North Korea’s motives, featuring more than a dozen indexed and contextualized document.

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Happy FOIA-ing!