FOIA Bill Passes Senate But Government Still Not Prioritizing Email: A Sunshine Week Wrap-Up FRINFORMSUM 3/18/2016

The Defense Intelligence Agency (DIA), the Department of the Treasury’s Comptroller, and the Nuclear Regulatory Commission (NRC) are among a handful of agencies that have already admitted they will not meet the December 31, 2016, deadline for electronic management of official government email – like Hillary Clinton’s – in their mandatory, annual self-assessment report to the National Archives and Records Administration (NARA).

The State Department, the Department of Defense, and the Energy Department – some of the government’s largest agencies – all filed their reports, which were due by January 29, more than a month late, and one in six agencies did not even bother to turn in their own self-assessments at all, according to a new Email Alert released by the National Security Archive to mark Sunshine Week.

The Archive’s Email Alert concludes that to get agencies to take email preservation seriously further steps are clearly needed. Useful ways to get agency attention include:

* a stern reminder from OMB and NARA that self-assessments are mandatory,
* a Government Accountability Office survey of agency email preservation, and
* congressional hearings showcasing the email savers along with the laggards.

The Archive nominated the Energy Department for the Electronic Frontier Foundation’s FOILIES Award for the most extraordinary and egregious FOIA request responses for withholding a 1978 letter on the Comprehensive Test Ban Treaty (CTBT) in full under FOIA’s oft-abused Exemption Five. DOE withheld the letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the CTBT saying that releasing any part of the document could “confuse the public about the Government’s later policy decisions.” DOE took this untenable stance even though the State Department has published declassified information on the CTBT – and Agnew’s negative views on it – in three Foreign Relations of the United States publications.

The CIA and the Justice Department used the same “confusion” argument last year when the Archive went to court to have a history on the Bay of Pigs invasion released. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge.

Proving again that FOIA “may be the last bastion of bipartisanship in Washington DC, Senators Patrick Leahy, John Cornyn, and Chuck Grassley” marked Sunshine Week by passing the FOIA Improvement Act of 2016 – via Unanimous Consent.  The Archive’s FOIA project director Nate Jones notes that to pass the bill by Unanimous Consent, “the senators amended the bill that passed out of the Judiciary Committee to make it slightly less strong than the bill that the Senate passed last session.  The section on Exemption Five reform was changed so that the 25-year sunset now only applies to the “Deliberative Process” privilege of Exemption Five (which covers drafts, and communications including emails and memos); the Attorney Client privilege and Attorney Work Product Privileges have been removed.  The Presidential Records Act forbids the use of any Exemption Five privilege beginning twelve years after the president leaves office.” This will still prevent the DOE and CIA from their aforementioned abuse of Exemption Five.

There is a possibility that the Senate could reconcile its bill with the House’s bill so that the strongest parts of both remain, but Rep. Elijah Cummings called on Speaker Paul Ryan to pass the Senate version, meaning that the House’s strong B5 reforms may have to wait until the next congress. (MuckRock has a very good comparison of what’s in both bills here.)

The White House indicated this week that it would sign the FOIA reform bill passed by the Senate, and that it would like to see FOIA apply to Congress. The announcement comes a week after a FOIA lawsuit revealed that the Obama administration and the Justice Department “aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.”

The House Oversight and Government Reform Committee is trying to shine a light on the Justice Department’s Office of Legal Counsel memos and opinion-making process. Committee Chairman Jason Chaffetz and Ranking Member Cummings sent a letter to the DOJ noting that a “recent news report indicates that Central Intelligence Agency General Counsel Caroline Krass stated at an event that more frequent requests under the Freedom of Information Act (FOIA) and concerns about opinions being made public ‘has served as a deterrent to some in terms of coming to the OLC to ask for an opinion.’” The Committee is seeking, among other things, documents showing how many FOIA requests for OLC opinions OLC received between 2005 and 2015, and “Documents sufficient to show whether OLC, or the Department more generally, utilizes any automatic program, such as Capstone, for Federal Records Act purposes.”

The Defense Department is seeking – for the second time – a new FOIA exemption that would protect “military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive.” Steve Aftergood notes that this is the second time in as many years that the DOD has requested the exemption. (Aftergood also has some sobering comments on the Senate’s FOIA reform bill at the bottom of this post that are worth a read.)

The ACLU recently filed a FOIA request with all intelligence agencies to learn more “about the standards governing prepublication review and the way those standards are applied.” The intelligence community has for decades – through “a variety of secrecy agreements and a patchwork of regulations” required current and former employers to submit their work, whether it is fiction for non-fiction, for security review before publication – a system that is seen by many as broken. Just Security reports that the major hurdle in fixing the system is lack of information on how it works, making it difficult to suggest fixes for “egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government.”

The Energy Department and its contractors continue to retaliate against employees and contractors that spoke to Government Accountability Office investigators, according to a recent McClatchy report. Senator Ron Wyden (D-Or), one of the three senators that requested the 2014 GAO investigation – itself into whistleblower retaliation – said that, “It defies belief that an Energy Department contractor would fire an employee who cooperated with a Government Accountability Office investigation into whistleblower retaliation,” going on to note that it shows the culture of retaliation is “alive and well” at the Energy Department.

Dan Metcalfe – founding director of the Justice Department’s Office of Information Policy – recently wrote an op-ed for Politico on the feebleness of Hillary Clinton’s defense for having both personal email and a personal server while serving as secretary of state – including many of the arguments Nate Jones and I make here. Intriguingly, Metcalfe says that when he retired from the Justice Department in 2007, “I had weathered many a Clinton records scandal during the 1990s—about two dozen, all told, including two that amazingly have still never become public.” Metcalfe argues that “both what Secretary Clinton arranged to do and what she now has said about that are, to put it most charitably, not what either the law or anything close to candor requires. At a minimum, it was a blatant circumvention of the FOIA by someone who unquestionably knows better.”

The Archive’s John Prados will be speaking at the Presser Auditorium at Ohio Northern University on Monday, March 21, discussing if there “Is There a Future for the CIA?” Prados has written a number of books, including: The Family Jewels: The CIA, Secrecy, and Presidential Power; The US Special Forces: What Everyone Needs to Know; and A Streetcar Named Pleiku: Vietnam 1965, A Turning Point. Stop by if you’re in the area!

National Security Advisor Susan Rice announcing President Obama’s special declassification on Argentina, March 17, 2016
(Photo courtesy of Atlantic Council/Victoria Langton).

As President Obama prepares to go to Argentina next week on the 40th anniversary of the military coup, the National Security Archive hailed his decision to declassify hundreds of still secret CIA and Defense Department records on the repression during the military dictatorship. The documents, whose release the Archive’s Carlos Osorio says demonstrates “tangible and concrete U.S. support for the pursuit of human rights and justice in Argentina,” are likely to shed significant light on the detailed U.S. knowledge of the repression during the dictatorship.

To provide a historical context for the President’s decision to declassify more records on Argentina, the National Security Archive today posted a unique collection of documents that reveal initial support by secretary of state Henry Kissinger for the abuses of the Argentine generals.

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Happy FOIA-ing!