FBI’s Classification Investigation Overlooks Clinton’s FOIA Evasion: FRINFORMSUM 7/7/2016

Hillary Clinton will not face criminal charges for mishandling classified information.

The FBI announced this week that it would not recommend criminal charges against Hillary Clinton for her handling of classified material as secretary of state. The decision was made on the grounds that Clinton did not willfully mishandle classified information by maintaining a personal email and server. The Clinton email fiasco has brought overclassification to the fore, and the National Security Archive has long argued that too much information gets classified and classification decisions are too often senseless. We’ve seen different agencies redact different portions of the same document, we’ve seen the same agency redact different portions of the same document, and we’ve even seen the same reviewer redact different portions of the same document a mere 10 days apart.

The investigation of Hillary Clinton’s personal email use through the lens of classification guidance has, however, overshadowed that Clinton’s email setup kept her records out of reach of FOIA requests, broke the Federal Records Act (36 CFR 1263.22), and went against NARA  guidance on email management (NARA Bulletin 2011-03).

But Clinton can bolster her transparency credentials in the wake of the scandal and FBI Director Comey’s rebuke by building off the FOIA reform legislation signed into law by President Obama on June 30 – the FOIA Improvement Act of 2016.

The Washington Post Editorial Board recently noted that the bill signing, which roughly coincided with FOIA’s 50^th birthday, codifies several important improvements that will help ensure FOIA “remains a vital tool for keeping government open and honest.” Among the most important improvements are a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), codification of a presumption of disclosure, and a requirement that agencies update their FOIA regulations within 180 days of the passage of the bill.

The bill leaves room for improvement, however, providing Clinton – or whoever succeeds President Obama – a much needed opportunity to show how she will promote transparency. Two key ways Clinton could commit to improving transparency and FOIA is to enact a public interest balancing test for each exemption an agency wishes to invoke, and establish a government commission or mechanism which can overturn bad agency FOIA decisions (like the Interagency Security Classification Appeals Panel in the Mandatory Declassification Review process). These steps would also help the FOIA’s middling global ranking compared to other transparency laws (Canada’s Center for Law and Democracy ranked the US FOIA 46 out of 103 transparency laws in a recent poll, between Tunisia and Trinidad and Tobago.)

The DC Court of Appeals ruled this week that private account emails can sometimes be considered government records subject to FOIA.  The ruling focused on Office of Science and Technology Policy science adviser John Holdren and an account he “kept on a server at the non-profit Woods Hole Research Center in Massachusetts.” Two of the three appeals court judges wrote, “If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served.”

The Department of Justice Office of Information Policy recently released its report on the proactive disclosure pilot assessment. Archive FOIA Project Director Nate Jones tweeted the biggest takeaways from the report, namely that if agencies like the Air Force, the National Archives, and the Environmental Protection Agency can employ technologies that automatically OCR and post FOIA responses into a repository, meaning that FOIA staff don’t need to spend any additional time posting FOIA-processed documents, why can’t all agencies use such efficient software to automatically post documents?

The OIP report, unfortunately, did not take the opportunity to dispel the 508 “red herring.” Section 508 requires agencies ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts – and has been in effect since 1998. Yet agencies routinely argue that making documents 508 compliant is too burdensome – even though agencies including the Department of State and all the agencies that participate in FOIAonline , which OIP participates in – routinely demonstrate otherwise, regularly posting their records online and in full compliance with Section 508. OIP missed an opportunity to take the lead and challenge other government agencies to meet the same standard it adheres to.

British investigators have released the results of a seven-year inquiry into Britain’s role, under Tony Blair’s leadership, in the 2003 invasion of Iraq. The Washington Post notes, “The report describes British intelligence painting a flawed picture of Iraqi military capacity, with agencies never doubting the existence of weapons of mass destruction.” The report also faults Blair’s government for presenting Saddam Hussein’s threat to Britain with a “certainty that was not justified,” and ignoring warnings that invading Iraq could grow the threat of Islamic extremism.

These findings square with documents posted by the National Security Archive back in 2010, which show that for nearly a year before the 2003 invasion of Iraq that the British government collaborated closely with the George W. Bush administration to produce a far starker picture of the threat from Saddam Hussein and his weapons of mass destruction than was justified by intelligence at the time.

The documents show, among other things, that:

• From early 2002 both governments were seeking regime change, but Prime Minister Blair and his officials were very conscious of the need to make a case for war, based on claims about Iraqi WMDs.
• From March 2002 – the very beginning of the process – the US and UK administrations were concerned about maintaining consistency in their claims about Iraqi weapons, often at the cost of accuracy. In the spring of 2002 the two countries began to produce in parallel the white papers on Iraq’s weapons of mass destruction that they published that fall. At least two drafts of the respective white papers were exchanged from either side in order to avoid providing grist for “opponents of action.”
• Officials working on the parallel papers took part in a number of secure video conferences to avoid inconsistencies between the documents. Both sides accelerated the drafting of their white papers in September 2002 as part of a coordinated propaganda effort.

The July 24, 1946 Baker Test in the initial seconds of the explosion, shrouding its formidable height over the U.S. Navy’s test fleet. (Colorized photo courtesy of National Nuclear Security Administration/Nevada Field Office)

The National Security Archive’s Nuclear Vault recently posted photographs and videos of Operation Crossroads’ “Able” test, which took place seventy years ago this month. Operation Crossroads was a joint US Army-Navy task force that attempted to measure the effects of atomic explosions on warships and other military targets by staging two atomic weapons tests at Bikini atoll in the Marshall Islands. The first test, Able, took place on 1 July 1946, and “involved an air burst directly above the assembled ships… The bomb missed its target by several thousand feet, destroying inadvertently one of the ships carrying measuring instruments. The error created a storm of criticism, but it was never fully explained, although the poor ballistics of ‘Fat Man’ were probably a factor.” The second test, Baker, took place on 25 July 1946 and was, according to Nuclear Vault director Dr. William Burr, “the most dangerous and spectacular of the two, producing iconic images of nuclear explosions. A third test was scheduled, but canceled.”

This week’s #tbt pick is chosen with The New York Times Sunday Magazine’s July 3^rd profile of Fredy Peccerelli – Guatemala’s foremost forensic anthropologist and longtime partner of the National Security Archive’s Guatemala Documentation Project – in mind. This week’s #tbt pick is the Archive’s 2011 posting on the Diario Militar case and the discovery – with Peccerelli’s help – of two of Guatemala’s death squad victims in a mass grave. The remains belonged to Amancio Samuel Villatoro and Sergio Saúl Linares Morales.

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Happy FOIA-ing!