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Congress Surreptitiously Undermines FOIA, Private Property Threatened by Border Wall, and More: FRINFORMSUM 9/21/2017

September 21, 2017

Congress Surreptitiously Undermines FOIA

Congress is not subject to the Freedom of Information Act (FOIA) and members of congress are under no obligation to make their records public.

But congressional communications with the Executive Branch agencies they are tasked with overseeing are subject to FOIA. Justice Department Office of Information Policy guidance makes clear that “documents conveying advice from an agency to Congress for purposes of congressional decisionmaking are not ‘inter-agency’ records under Exemption 5 because Congress is not itself an ‘agency’ under the FOIA.”

Yet members of congress, just a year after passing bipartisan reforms to strengthen the Freedom of Information Act, appear to be trying to tell agencies to ignore DOJ guidance and existing case law.

The Columbia Journalism Review notes, “In April, for example, the Republican chair of the House Financial Services Committee, Rep. Jeb Hensarling, fired off letters to a dozen government agencies, warning that all correspondence with his committee should be exempt from FOIA. And in May, BuzzFeed reported that the House Ways and Means Committee had taken similar steps to shield its correspondence with the Centers for Medicare and Medicaid Services.”

The House of Representatives’ general counsel also recently argued in court that documents originating from the congress and released in response to a FOIA lawsuit should not have been released, saying that “releasing correspondence between Congress and federal agencies could ‘impair’ Congressional scrutiny.”

This is a giant step backward from a Congress that purports to support transparency. Nate Jones, the National Security Archive’s FOIA Project Director, says of Congress: “They’re trying to do this secretly, and they think the public’s not gonna care they’re attempting to eviscerate the Freedom of Information Act. We have to expose it, and make sure it doesn’t happen in a cigar-filled room but in a public forum, and that constituents know what their representatives are doing and tell them to stop doing it.”

In December 2014 Jones penned a blog on “What We Can Learn from the Death of a Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government” that is a timely re-read.

Public Records Show How Much Private Property Threatened by Potential Border Wall

USA Today reporters undertook a massive effort to understand what it would take to build a border wall along the U.S.-Mexico border, one of President Trump’s signature campaign pledges. The international border is just under 2,000 miles, more than half of which is in Texas.

The debate in Texas is particularly complicated. The Rio Grande serves as the natural border between the U.S. and Mexico, meaning any structure would have to be built somewhat inland – and in Texas, this largely means on personal property. USA Today reporters took advantage of the state’s public records law to see just how complicated this issue might become. They found that a wall would run through 4,900 parcels of private property that abuts the border.

In 2006 the federal government brought more than 300 condemnation cases against private landowners in Texas to build the portions of the border fence that currently exist in the state. Nearly a third of those cases are still in litigation.

Reporters are also using FOIA to track down prototype designs of the wall that are slated to be built near San Diego. Several organizations, including American Oversight and the Center for Biological Diversity, have already sued the Department of Homeland Security under the FOIA for records related to the prototypes.

Trump Hides Mar-a-Lago Visitor Records

Yesterday the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW), filed a court motion asking “the Court issue an order requiring the government to show cause for its failure to comply with its court-ordered obligation to produce all responsive and non-exempt Mar-a-Lago records.”

The Department of Homeland Security last week released exactly two pages of Mar-a-Lago presidential visitor records in response to our FOIA lawsuit. The only document the government released concerns the visit of Japanese Prime Minister Shinzo Abe – this after telling Judge Failla and the plaintiffs that DHS would produce all the visitor records.

“The government misled the plaintiffs and the court,” commented the National Security Archive’s Director Tom Blanton. “I can only conclude that the Trump White House intervened and overrode career lawyers.”

FEMA Nominee Withdraws

The Project on Government Oversight has a good read on former Federal Emergency Management Agency (FEMA) official Daniel “Dan” Craig. Craig was tapped by President Trump to be the FEMA Deputy Administrator, but he – “likely facing many hurdles during his Senate confirmation hearing” – withdrew his nomination last week. POGO has been following Craig’s FEMA role for years, dating back to his awarding of sole source FEMA housing contracts after Hurricane Katrina that were “the subject of numerous reports of wasteful spending.”

POGO’s Scott Amey notes:

“As part of an investigation into those FEMA housing contracts, POGO submitted a Freedom of Information Act (FOIA) request to DHS in August 2006 (and a subsequent FOIA appeal in 2016) for any communications between Craig and the four companies that each received a $500 million non-competitive contract: Shaw GroupFluor Corp.Bechtel National Inc., and CH2MHill—all of which were companies where Craig had reportedly sought employment.

Finally, after 11 years, the DHS IG supplied the previously nonpublic report from 2007 to POGO. That report and its exhibits highlight Craig’s employment negotiations with two of the four sole source FEMA housing contractors—Fluor and the Shaw Group—the latter of which was a client of Craig’s post-FEMA employer.”

Michigan State and Reverse-FOIA Laswuits

Michigan State recently lost its second reverse-FOIA lawsuit against ESPN since 2015. A February 10 ESPN FOIA request specifically sought “all police reports containing allegations of sexual assault since Dec. 10, 2016, as well as records of arrests made between Feb. 6 and Feb. 9, according to court documents. The request came one day after MSU announced the suspensions of three MSU football players and a staff member associated with the team amid a sexual assault investigation.” MSU then sued ESPN and asked the court to decide whether some police reports could be withheld. The judge, Michigan Court of Claims Judge Cynthia Stephens found instead, “It does not take much imagination to think that the type of suit MSU wants to bring in the instant case could dissuade persons from making FOIA requests in the first instance out of fear of being sued by a public body. Such a chilling effect would be entirely incongruous with the statutory purposes of disclosure and open governance.”

ESPN won a separate lawsuit against MSU in 2015 for a 2014 FOIA  “for incident reports involving 301 student-athletes.” (The Lansing State Journal notes that MSU routinely uses the police investigation exemptions to deny documents that are not police products, including internal university investigations and emails.)

The Associated Press reports that reverse-FOIA lawsuits – while not an entirely new phenomenon – are becoming more popular with state and local governments “turning the tables on citizens who seek public records that might be embarrassing or legally sensitive. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.”

Another AP article examined a variety of bills introduced across the country intended to weaken state FOI laws. “Most of those proposals did not become law, but freedom-of-information advocates in some states said they were struck by the number of bills they believed would harm the public interest, and they are bracing for more fights next year.”

Cyber Vault: IRS Employees and Electronic Filing Fraud

1994 Government Accountability Office testimony before the Senate, which was recently taken down from GAO’s website, describes early efforts by the IRS to adapt to increased threats of electronic fraud and unauthorized access of taxpayer data by IRS employees. An interesting passage on “improper access to taxpayer data” focuses on IRS employees abusing taxpayer information, either by improperly monitoring their own fraudulent returns, issuing fraudulent returns, or “improperly browsing” other accounts. Audits also determined the punishments for such abuses were frequently too lenient.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 20. 

Leonard Perroots

TBT Pick – Two Men Saved the World from Nuclear War Two Months Apart in 1983

This week’s #TBT pick is chosen with the recent death of Stanislav Petrov, “the  man who saved the world” in September 1983 when he correctly suspected that Soviet satellite warnings of a U.S. nuclear attack were a false alarm and didn’t report them to superiors, in mind. As Nate Jones notes in his book, Able Archer 83:

“After a few terrifying minutes, the on-duty officer Colonel Stanislov Petrov reported, ‘this is a false alarm.’ Petrov came to this decision because he calculated that there was not yet enough corroborating radar on telescopic data, and because his ‘gut instinct’ told him that the United States would not launch a sudden nuclear attack against the Soviet Union.”

“’Gut instinct’ would play a role during Able Archer 83, this time on the American side.”

The man who saved the world less than two months later on the American side was Air Force lieutenant general and director of the Defense Intelligence Agency Leonard H. Perroots, then a young air force officer. In November 1993 Perroots made the “fortuitous, if ill-informed [] decision” … ‘out of instinct, not informed guidance’ to do ‘nothing in the face of evidence that parts of the Soviet armed forces were moving to an unusual level of alert” during a Soviet exercise conducted in response to Able Archer.

More on the 1983 War Scare can be found here.

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