Vote to Update OMB’s Three-Decade-Old FOIA Fee Guidelines, “28 Pages” Not the Only 9/11 Documents Still Senselessly Withheld, and More: FRINFORMSUM 4/21/2016

Group shot of the Advisory Committee, which voted unanimously to update OMB’s outdated fee guidance, April 19, 2016.

The FOIA Federal Advisory Committee voted unanimously to update the Office of Management and Budget’s three-decade-old FOIA fee guidelines during its most recent meeting on Tuesday, April 19. Toby McIntosh of FreedomInfo.org notes that the unanimous vote was achieved only after an acceptable compromise on language was agreed upon “after some members, mainly from government agencies, voiced last-minute concerns about language” on when agencies have discretion to not charge FOIA fees. The last-minute changes cropped up, briefly calling into question whether the vote to bring the fee guidance into the 21^st century would be successful, even though the agreed upon changes could have very likely been communicated and agreed upon before the meeting.  Still, the live amendment process added a flash of drama, and fortunately unanimous consensus recommendations were reached. The final recommendations are available here.

The advisory committee also received a report from the Subcommittee on FOIA Oversight and Accountability that concludes that the government’s FOIA oversight methods “are not sufficient.” The Archive’s Nate Jones, a member of the Oversight Subcommittee, told the Advisory Committee, “Reporting is important but it can’t be the be all and end all of FOIA compliance.” Jones argued that a FOIA watchdog – with the independence and authority to enforce compliance – is needed to compel lagging agencies to improve their FOIA performance.

George Will recently added his voice to the chorus calling for the declassification of the 28 pages that detail Saudi involvement in the 9/11 attacks that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. Will calls on President Obama to release the 28 pages upon return from his trip to Saudi Arabia in a recent op-ed, noting the release “would be mild punishment for complicity in 2,977 murders.”  Will doesn’t stop there; he argues that Obama should “further curtail senseless secrecy by countermanding the CIA’s refusal to release its official history of the 1961 Bay of Pigs debacle.”

The Archive couldn’t agree more. The National Security Archive filed a FOIA lawsuit for the full release of the CIA’s history of the invasion, only to have the D.C. Circuit uphold the CIA’s cover-up by ruling that a 30-year-old volume of the CIA’s draft “official history” could be withheld from the public under the “deliberative process” privilege. This obfuscation was upheld even though four of the five volumes of the invasion have previously been released with no harm either to national security or any government deliberation. Both the House and Senate FOIA bills would fix this problem by adding a 25-year sunset to the “deliberative process” exemption, but both bills appear stalled despite unanimous support.

The infamous “28 pages” are not the only documents related to 9/11 still being senselessly withheld. The DOD is withholding nearly 60 pages of Donald Rumsfeld’s documents on Osama bin Laden, Al Qaeda, and the Taliban from 2001 — including the nine months preceding the attack, leaving it unclear what Rumsfeld’s office did or did not know in the lead-up to the tragedy. The Archive requested the records a decade ago, and only recently received the heavily redacted response; all withholdings were pursuant to the national security exemption and FOIA’s “withhold it because you want to” exemption 5.  Exemption 5 is the “deliberative process” exemption and potentially covers any “inter-agency or intra-agency memorandums or letters” and, according to DOJ guidance, “hold[s] the greatest potential for discretionary disclosures.” The Archive is of course appealing this misapplication of the b5 exemption, increasingly used to prevent embarrassment or hide errors and failures –, and will keep fighting for the release of these historically significant documents.

Senators Chuck Grassley (R-Iowa)and Patrick Leahy (D-Vt.) recently scored a FOIA win during the reauthorization of the Commodity Futures Trading Commission (CFTC), preventing “the CFTC’s FOIA exemptions from going beyond what is necessary.” The senators introduced an amendment, which was accepted, that ensured that data compiled by the commission remains subject to FOIA. Grassley said of the amendment’s success that “FOIA already strikes a proper balance between the public’s right to know and the government’s need to protect certain information.  But special interests wanted to give the CFTC additional, nearly carte blanche authority to fully exempt certain information from public accountability through FOIA.  That was unacceptable to Senator Leahy and me.”

FOIA records obtained the nonpartisan advocacy group, Protect Our Defenders, show that top brass at the Pentagon deliberately misled Congress on the military’s handling of sexual assault cases to blunt support for a Senate bill that would transfer certain authorities to independent prosecutors. Military officials used “vague or inaccurate language” to portray the bill –which would grant independent prosecutors the authority to determine whether or not charges should be brought, rather than unit commands – as unnecessary, or even detrimental. To do so, officials cherry-picked 93 cases – later disproved – of civilian prosecutors refusing to handle certain sexual assault cases to claim that less sexual assault cases would be brought to trial. Protect Our Defender is calling for additional Congressional hearings to address “this latest deception,” and the group’s full analysis of the documents is available here.

The Bureau of Prisons (BOP) told the ACLU that it had no records in response to the ACLU’s FOIA request for records on BOG officials’ visit to a CIA detention site in Afghanistan in 2002. The BOP made this outrageous claim even though “A U.S. Senate report revealed the Bureau of Prisons said the CIA site was ‘not inhumane,’ adding that the visiting team was ‘wowed’ by the level of sensory deprivation the CIA achieved against suspects.” The ACLU is filing a FOIA lawsuit to compel the release of documents that, in all likelihood, do exist.

Microsoft is suing the government over the nondisclosure provisions contained in national security letters – letters which are overwhelmingly sent by the FBI and demand business records from a wide array of organizations for national security investigations. The gag orders are often indefinite, meaning companies like Microsoft “are forever barred from speaking, and our customers are forever barred from hearing that the government has accessed their email or other content.” The National Security Archive’s review of these powerful –and largely unchecked– letters, helps contextualize both the FBI’s concerns altering one of its key investigative tools, and the serious civil rights concerns that tool elicits.

Sean Gallagher highlighted a fascinating document from the Archive’s “Cyber Vault” in a recent Ars Technica posting. The document is a 1970 Defense Science Board Task Force on Computer Security Security Controls for Computer Systems Report, and attempts to examine “the risks associated with the rapid growth of ‘multi-access, resource-sharing computer systems,’” and offers a list of conclusions and recommendations that Gallagher says many have failed to heed. Gallagher notes the document is “a classic text of computer security,” going on to say that “as much as technology has changed in the 46 years that have passed, the [document] would still hold up pretty well today with a few notable edits.”

This week’s #tbt pick is chosen with news that the Mexican army is withholding “key evidence from international investigators in the case of 43 trainee teachers abducted and apparently massacred in late 2014, hampering their efforts to reach the truth,” in mind. This week’s #tbt pick is a 2015 Archive posting on the prelude to the massacre, which showed – thanks to a 2011 declassified cable from the US Embassy in Mexico obtained by the Archive – that “U.S. Ambassador to Mexico Earl Anthony Wayne said that ‘evidence of heavy-handed police tactics’ was ‘strong and disconcerting’ after a 2011 clash with student protesters from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded.”

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Happy FOIA-ing!