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OIP Has No Answer to FOIA Audit Showing 3 out of 5 Agencies Flouting New FOIA Law: FRINFORMSUM 3/16/2017

March 16, 2017

Houston, We Have a Problem if 3 out of 5 Agencies Ignore New FOIA Law

Three out of five of all federal agencies are flouting the new law that improved the Freedom of Information Act (FOIA) and required them to update their FOIA regulations, according to the new National Security Archive FOIA Audit released to celebrate Sunshine Week.

The National Security Archive Audit found that only 38 out of 99 federal agencies have updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016 that was passed with bipartisan, bicameral support. The new law required agencies to update their FOIA regulations within 180 days of passage – that was June 30 so December 27, 2016 was the deadline.

Because 61 agencies have not updated their FOIA regulations, many requesters may still be charged improper FOIA fees if an agency misses a deadline, could be unaware of the mediation services available to them, and are being robbed of their rightful appeals deadlines. While the law mandates that requesters be given “not less than 90 days” to file an appeal, many agencies with outdated regulations routinely give requesters much shorter 30, 45, and 60-day deadlines.

The audit faulted the Department of Justice’s Office of Information Policy (OIP) for “clearly failing in its mandate to oversee FOIA compliance throughout the federal government.”

In response, OIP head Melanie Pustay said, “Since passage of the FOIA Improvement Act of 2016 the Office of Information Policy has engaged in a wide range of activities to inform and advise agencies of their obligations under the new statutory provisions.” It remains clear, however, that with 3 out of 5 agencies ignoring the new law – whatever guidance and assistance OIP is providing is not nearly enough.

Sunshine Week Round-Up

Archive director Tom Blanton speaks at NARA event on “FOIA After 50”

Sunshine Week 2017 kicked into full gear on Monday at the U.S. National Archives in an event hosted by the Office of Government Information Services (OGIS).

Archivist of the United States, David Ferriero, noted in his opening remarks that he was pleased to see continued bipartisan support for the FOIA – a sentiment the entire open government community shares. Ferriero also stated, in response to a question from the Sunlight Foundation’s Alex Howard, that NARA always follows up with agencies when it sees news reports of agencies taking down information from their websites to ensure that – if the records are covered by the agencies records control schedule – to ensure the information is preserved. Ferriero pressed the audience and the public to visit each agency’s website to view their control schedules.

National Security Archive director Tom Blanton, University of Maryland College of Journalism dean Lucy Dalglish, and Ralph Nader joined Tom Susman for a panel on FOIA after 50. Nader – who called the Archive “the majordomo” of FOIA – cited Archive FOIA project director Nate Jones’ 2015 House testimony to recount the problems FOIA currently faces, calling for a massive expansion of usage, especially among the young. Blanton noted that while FOIA has its problems – in no small part captured by the Archive’s latest audit – the law continues to be one of the most important drivers of the news – recently shedding light on Mike Pence’s use of private email while governor of Indiana, EPA head Scott Pruitt’s collusion with the oil and gas industry, and national security adviser H.R. McMaster’s official reprimand for his handling of a sexual assault investigation.

Representatives Jason Chaffetz and Elijah Cummings both provided remarks, with Cummings citing Tom Blanton’s December 2016 House testimony that the new sunset provision in the FOIA Improvement Act of 2016 “has already resulted in the release of documents on the Bay of Pigs incident the CIA had hidden away for more than 50 years.”

Check out the video here.

Forecasting Freedom of Information,” a survey directed by the University of Arizona’s journalism professor David Cuillier and sponsored by the Knight Foundation, found that “Nearly 9 of 10 experts who contributed to this study—be they journalists, librarians, nonprofit groups or government employees—fear the new administration will worsen freedom of information and government transparency.” The authors of the study make the case for a “freedom of information renaissance” to counter the threat. The authors argue the four priorities that should define such an effort are: banding together, taking FOIA fights increasingly local, increasing education and advocacy, and developing digital technology.

The Electronic Frontier Foundation announced the winners of the 3rd annual FOILIES award for worse open government performance. “Winners” included Donald Trump for his efforts to Make America Opaque Again, Mike Pence for vilifying Hillary Clinton’s private email and server while maintaining his own Private AOL account, and the Justice Department of sending a FOIA response not to the intended requester – but instead to an inmate in federal prison serving time for child pornography charges. “The offender, however, was nice enough to forward the message to the PAC with a note railing against the ‘malicious incompetence’ of the Obama administration.”

Anatoly Chernyaev with his partner Lyudmila Rudakova and their dog Yashka in September 2016″ (photo by Tom Blanton)

Archive Hero Anatoly Chernyaev Dies at 95

The National Security Archive mourns the passing of our dear friend, mentor, inspiration, and colleague, Anatoly Chernyaev, in Moscow at the age of 95.

Anatoly Sergeyevich ranks as a leading protagonist of the peaceful end of the Cold War, a pioneer of “new thinking” on mutual security in international relations, and a transformative visionary for a demilitarized and democratic Soviet Union and a new Russia that tragically never came to be.

He served as the national security adviser to Soviet leader Mikhail Gorbachev from March 1986 through the end of the USSR in December 1991, preparing, participating, and often taking the official Soviet notes at summit meetings with U.S. presidents Reagan and Bush, and with world leaders ranging from Margaret Thatcher to Rajiv Gandhi.

A champion of glasnost and access to sources, Anatoly Chernyaev was a luminary of the Gorbachev Foundation at its finest. His generosity put all scholars who study the end of the Cold War in his debt. He remains our hero.

His Washington Post obituary is here.

Finding Oscar

Reserve your seat now for a free screening and discussion of the documentary “Finding Oscar” at Busboys in Poets in DC next Thursday, March 23.

The filmmakers attempt to find Oscar, a young boy who was spared from a massacre during Guatemala’s decade-long civil war – only to be raised by one of the soldiers who killed his family. In finding Oscar, the filmmakers hope “to uncover the truth and bring justice to those responsible.”

Join the National Security Archive’s Kate Doyle, ProPublica’s Sebastian Rotella, the Washington Office on Latin America’s Geoff Thale, and the Department of Homeland Security’s Kelly Fry for a discussion after the screening to explore the continuing hunt for fugitive commandos involved in the Guatemalan massacre and other past atrocities in Central America – some of whom are in the United States – as well as the parallels between Oscar’s story and the intensifying conversation around immigration and refugees in the United States today.

Naval Academy Professor says Section 702 Complies with Fourth Amendment

Congressional testimony from Naval Academy cybersecurity law professor Jeff Kosseff found that, regarding the Fourth Amendment, Section 702 of the FISA “is substantially different from the massive dragnet operation portrayed in the media reports. I discovered an effective foreign intelligence program that is subject to rigorous oversight by the three branches of government and, under the totality of the circumstances, complies with the Fourth Amendment.” Kosseff notes, however, that without the important work done by the Privacy and Civil Liberties Oversight Board, an evaluation of the program would have been impossible.

Kosseff finds, among other things, that “because foreign intelligence is a special need that is distinct from normal law enforcement, the Fourth Amendment does not require a warrant for Section 702,” and that, “On balance, the FBI’s ability to query Section 702 data, as described in the public record, does not render Section 702 unconstitutional.”

This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, March 15.

A 2005 report from the National Ground Intelligence Center speculated that Beijing might be trying to develop a capability to incapacitate Taiwan electronically without triggering a U.S. nuclear retaliation. (Document 11)

#TBT – US Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick is a 2011 posting on US intelligence agencies monitoring Chinese weapons development. The posting includes primary sources on an array of issues, including:

  1. Estimates and studies of the China’s foreign and defense policies, strategic power, scientific and industrial capabilities, and domestic affairs;
  2. Biographical information on Chinese military and civilian leaders;
  3. Studies of the possibility of a PRC-Taiwan clash (whether over islands in the Taiwan Straits or Taiwan itself);
  4. Materials discussing Taiwan’s production of conventional arms, and its occasional quest to develop nuclear weapons.

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Happy FOIA-ing!


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