Agencies Hope FOIA Delays Outlast Public Scrutiny, Upcoming FOIA Committee Vote to Update OMB Fee Guidance, and More: FRINFORMSUM 4/14/2016

“AP didn’t get this through FOIA, did they? If so, maybe it’s time to hire some new redactors. They got a bit too much of an inside view.” This quote (whose author is redacted) comes from documents obtained by AP from the US Agency for International Development (USAID) – yes, through the FOIA – on the sham “Cuban Twitter” account funded by USAID to stir political unrest in the communist country. AP filed the FOIA request when the story first broke in 2014, and USAID officials hoped that the glacial FOIA process would mean that the story was no longer news once the documents were released. One senior official, Mark Lopes, said, “The risk is that it gets FOIA’d later. FOIA will take six months,” going on to say, “I say yes so we get through the next week, six months from now when FOIA comes out, this will all be over?” Lopes underestimated the FOIA delays at the agency – the request took two years to process. The documents clearly show the agency has forgotten – or is willfully disregarding – the President’s instruction that information not be withheld “merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”

USAID isn’t the only bad actor willfully disregarding the FOIA – or dragging its heels to improve the FOIA process to keep embarrassing information out of public view.

An Army document leaked last year shows two generals discussing delaying a response to a New York Times FOIA request on concussions at West Point for public affairs reasons. The Times FOIA request sought information on concussions resulting from a mandatory boxing class, and Army surgeon general, Lt. Gen. Patricia D. Horoho, suggested that rather than promptly replying to the request, “trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.” An Army official who opposed encouraging other publications to run a more favorable story leaked the document to the Times. “After learning of the [leaked] document, the Air Force Academy and West Point quickly released concussion numbers.”

The FOIA Advisory Committee’s last meeting will be held on April 19, 2016 (register here to attend). The Committee’s biggest deliverable to date is working to update outdated OMB FOIA fee guidelines – that date all the way back to 1987. The DOD’s Jim Hogan, who is also the fees subcommittee chair, notes that the guidance is missing a key word: “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Is the key missing word “some”, “half,” “most”, or something else? The Committee voting to rectify this lingering issue and bring the guidance into the 21^st century will be of lasting importance.

Former Senator Bob Graham recently appeared on 60 Minutes and renewed calls to declassify 28 pages that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. The Bush administration excised the pages, which detail Saudi involvement in the 9/11 attacks, on the grounds that their disclosure would harm national security. Graham said, however, that he remains “deeply disturbed by the amount of material that has been censored from this report,” and the Saudi government is also urging for the pages to be released. Former Secretary of the Navy, John Lehman, added that he – and many other officials calling for the report’s declassification – “know when something shouldn’t be declassified. An[d] the, this, those 28 pages in no way fall into that category.”

Haqqani Network (HQN) fundraising efforts have deep roots in the Gulf States and in the oil industry; the Pakistan Inter-Services Intelligence Directorate funneled $200,000 to HQN for an attack on the on the CIA facility at Camp Chapman; squabbles over low-level militants not giving kickbacks from ransom money to Haqqani leadership; and Hamid Karzai’s brother hooking a Haqqani informant up with a job at a US security  base so the informant could provide details on US vehicles and personnel to the terrorist organization. These are all details found in a fascinating collection of declassified documents obtained by the National Security Archive through the FOIA showing the Haqqani Network’s efforts to diversify its funding away from the foreign sources it relied on during the Cold War, including the CIA and Pakistani intelligence services, and towards more traditionally criminal activity. These documents were requested under the FOIA as part of the Archive’s Afghanistan, Pakistan and Taliban project, and we will continue to post on interesting documents as they come in.

U.S. District Judge James Boasberg is not moved by VICE News’s Jason Leopold and MIT’s Ryan Shapiro’s efforts to obtain CIA documents on its very public battle with the Senate Intelligence Committee over the Committee’s report on the CIA torture program (whose status as a federal record remains in jeopardy). Courthouse News Service notes that Leopold and Shapiro “complained about the CIA’s failure to identify which records system it searched before denying access, but Boasberg nixed this argument as ‘oft-used but rarely successful strategy.’”

Director of National Intelligence James Clapper recently sent a memo to intelligence agency heads on the upcoming Fundamental Classification Guidance Review, effectively signaling to the agencies under his jurisdiction that efforts at classification reform are a priority for the intelligence community. Hopefully. Nate Jones tells CNN that while efforts to eliminate the “Confidential” label (the memo asks agencies to consider if this is a possibility) and requiring discretionary releases look good on paper, “the proof will be in the pudding.” The Electronic Frontier Foundation elaborates, noting that “discretionary disclosure without a strong presumption that material must be made public is a hollow effort to increase transparency. And without clear guidance to agencies about eliminating the ‘confidential’ category of classification, they may simply mark the same materials with the next-highest classification category rather than disclose the information.”

The University of Denver’s Sturm College of Law’s Margaret Kwoka has published a thought-provoking paper on how to rectify the often contentious issues surrounding FOIA fees (more on the Archive and Project on Government Oversight’s efforts to identify some of them from the requester perspective here). This Article provides “an in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: third party oversight of governmental actors… [the]Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.”

Duane “Dewey” Clarridge, a CIA officer who was involved in the Iran-Contra affair and helped found the agency’s Counterterrorism Center, is dead at 83. In his final report Lawrence Walsh – the independent counsel investigating Iran-Contra – found that “there was strong evidence that Clarridge’s testimony was false.” Clarridge, however, was pardoned by President Bush. Read highlights from Walsh’s final report, curated and analyzed by Archive staff, here.

In the DC area next week? If so, register the American Society of Access Professional’s event celebrating the 50^th anniversary of FOIA! Entitled “Food for Thought” the lunch event will be held at Carmine’s and will feature Michael Lemov, who served for eight years as chief counsel to John Moss, the father of the Freedom of Information Act. Lemov has authored the definitive history of John Moss and the Freedom of Information Act, People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights, and will regale attendees with a history of the battles that had to be fought to make FOIA a reality, and what the hopes at the time were in implementing the FOIA.

This week’s #tbt document pick is from the Archive’s newly-launched Cyber Vault, and is a February 11, 1970, Defense Science Board report on security controls for computer systems. Among the conclusions reached was that contemporary technology could not provide a secure system in an open environment, and that it would be unwise to incorporate sensitive information in an open environment system unless a significant risk of accidental disclosure could be accepted.

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Happy FOIA-ing!