ODNI Yet to Formally Withdraw Rule on Astronomically High MDR Fees Despite Pledge to Modify It: FRINFORMSUM 3/10/2016

MDR fees ODNI has yet to formally withdraw would charge requesters up to $72 an hour.

The Office of the Director of National Intelligence (ODNI) has agreed to modify a recently revealed plan to charge requesters up to $72 per hour to review Mandatory Declassification Review (MDR) requests, even if no information is found or if all of the information that is found must be withheld, Steve Aftergood reports. ODNI’s Information Management Division director Jennifer Hudson said the agency agreed to modify the rule and will “swap out the [MDR] fee structure… for the fee structure in the FOIA policy”. This is good news – if it happens. The astronomically high fees – which will go into effect by April 26, 2016, “unless adverse comment is received by March 28, 2016” – are out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. ODNI has yet to formally withdraw the rule, however, and until it does good government groups should continue to submit comments.

Sunshine Week, the national celebration of open government and freedom of information, kicks into high gear tomorrow with the 2016 National Freedom of Information Day Conference at the Newseum. The day-long conference will include remarks from U.S. Rep. Jason Chaffetz (R-Utah) and Office of Government Information Services (OGIS) Director James Holzer, as well as a panel on the American Society of News Editor’s Sunshine Week project, the American Library Association’s James Madison Award, and induction of a new class into the FOIA Hall of Fame.

OGIS will also be hosting a very cool event of its own to celebrate Sunshine Week this coming Monday. In addition to speeches from Archivist of the United States, David Ferriero, and Senator Patrick Leahy (D – Vt.), the copy of the FOIA signed by President Johnson 50 years ago in 1966 will be available for viewing before and for the first portion of the event.

Just in time for Sunshine Week, documents released thanks to a FOIA lawsuit brought by the Freedom of the Press Foundation show that the Obama administration “aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.” Specifically, the Justice Department vehemently objected to nearly all aspects of the bill, including codifying the presumption of openness touted in Obama’s Day One transparency memo. Archive FOIA Project Director Nate Jones told Vice News’ Jason Leopold, “It took the Freedom of Information Act to provide evidence of what many felt but could not prove: that the Department of Justice ‘strongly opposes’ fixing the Freedom of Information Act,” going on to note that, “The released talking points make clear that on the one hand, DOJ ensures agencies do the bare minimum to comply with the FOIA’s requirements and paints a misleadingly rosy picture during congressional testimony, while [on] the other it secretly works to block Congress’s attempts to release more records to more people more quickly. It’s no wonder FOIA requests take decades to process and tens of thousands of pages are improperly withheld when the DOJ — the agency envisioned in 1966 to be the watchdog tasked to ‘encourage compliance’ — is actually working to stymie reform.”

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

The FBI hired an unqualified contractor “to conduct research and to provide analysis and reporting services” for its FOIA program last year. The contractor the FBI hired – US Investigations Services – did not have the required personnel to fulfill the requirements of the contract, according to a recent Government Accountability Office protest, which shows that “Instead of personnel with experience in paralegal, records management and declassification review, the FBI got personnel with capabilities in the development of business methods and identification of best practices.” The GAO protest sheds some light on the problematic practice of outsourcing FOIA work to government contractors – who are themselves not subject to FOIA and are, nominally, not supposed to perform any work that is inherently governmental.

The Guardian reports that the FBI has changed its “privacy rules for searching data involving Americans’ international communications that was collected by the National Security Agency,” but exactly what the changes are remain classified. The Foreign Intelligence Surveillance Court accepted the changes during the bureau’s annual recertification of its surveillance powers. The FBI is considering releasing the changes, but until then “it remains unknown whether the FBI will now make note of when and what it queries in the NSA data.”

The Defense Department estimated the total cost of processing MuckRock user Martin Peck’s FOIA request for information on “HotPlug” systems  – “a portable power pack that keeps seized devices from powering down” – at $660 million. The DOD is quoting the ridiculously high number because it has no way of searching its electronic database. According to the Defense Department, “it is possible that contracts that acquired the requested items are present in the Electronic Documents Access (EDA) system; however, there are more than 30 million contracts in EDA, consisting of more than 45 million documents. No method exists for a complete text search of EDA, as some documents are scans of paper copies.” Fees are, however, significantly lower for requesters in favorable fee categories – like news media or educational – and when agencies miss their statutory response deadlines; the Open Government Act of 2007 mandates that agencies are not allowed to charge non-commercial FOIA requesters “search fees, or, if applicable, duplication fees” if the agency misses the FOIA’s statutory twenty-day response deadline. The chart below shows that agencies can charge a requester – if anything – if they miss this deadline:

The State Department has removed twelve emails found in the personal accounts belonging to Colin Powell and top aides to Condoleezza Rice from its unclassified archives after the State Department inspector general determined last month that the emails were classified. 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?’”

Applications for the position of Director of the Information Security Oversight Office (ISOO) are being accepted on USA Jobs until March 28. The position is a potentially powerful one. Executive Order 13526 says that “If the Director of the Information Security Oversight Office determines that information is classified in violation of this order, the Director may require the information to be declassified by the agency that originated the classification”. Steve Aftergood notes that given the publicity classification decisions – like those of Mr. Powell’s emails – have received recently, that “the position of ISOO director is potentially even more important than ever before, and the next ISOO director could play a leading role in reconciling competing interests in secrecy and disclosure.”

A Defense Department inspector general report released thanks to FOIA concludes that the DOD’s use of drones to support local authorities in 2015 did not violate any laws or policies. The report also notes that between 2006 and 2015 there were “less than twenty events that could be categorized as DoD UAS support to domestic civil authorities,” and that that number included “both approved and disapproved requests.”

Defense Secretary Ashton B. Carter disclosed some of the projects being worked on by the secretive Strategic Capabilities Office last month “while previewing his proposed 2017 budget. He called for $902 million in funding for SCO in 2017 — nearly twice what it received this year, and 18 times what it started with.” Some of the newly-revealed projects include mini-drone prototypes with the ability to swarm, and an “Avatar”, which “calls for the Pentagon to pair high-tech ‘fifth-generation’ fighter jets like the F-22 Raptor and F-35 Joint Strike Fighter with unmanned versions of older jets like the F-16 Fighting Falcon or F/A-18 Hornet, which would be flown without a pilot for the first time.” The office was launched in 2012 with the goal of countering growing strategic Russian and Chinese threats.

Cover page of the Tlatlaya Report.

A newly-available report, published jointly by the Archive and the investigative team at Aristegui Noticias in Mexico and released thanks to an Archive access-to-information request and appeal, provides more detailed evidence about the actions of Mexican Army soldiers accused of executing at least 11 people who surrendered after a June 2014 firefight in Tlatlaya, Mexico.  The Tlatlaya report was released in accordance with the human rights exception in Mexico’s access law and is a major victory for access to human rights information in Mexico. It raises new questions about how Mexican authorities have handled the investigation, the exact number of executions that occurred that day, and why some of the soldiers later changed their testimonies to implicate others in the crime.

This week’s #tbt pick is chosen with International Women’s Day (March 8) in mind. This week’s #tbt pick is page 1 of The Diary of Anatoly S. Chernyaev, 1972, which shows that for the holiday Soviet leader Leonid Brezhnev went to “the dacha with Viktoriya Petrovna (wife). Nobody visited us. During the day she went to the hospital, our daughter (20 years old) got a duodenal ulcer. Who would have thought… But it looks like she is going to be ok.” The diary was generously donated by Anatoly Sergeyevich Chernyaev to the National Security Archive and is available here.

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Happy FOIA-ing!