FOIA Federal Advisory Committee Highlights Email Preservation, FOIA Searches: FRINFORMSUM 10/19/2017

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

The Federal FOIA Advisory Committee met today (video available here and other resources here), with updates from the three subcommittees (searches, efficiencies and resources, and proactive disclosure), and a very interesting presentation on NARA’s email Capstone policy from Jason Baron, formerly NARA’s director of litigation and now counsel at Drinker Biddle LLP.

Highlights from the meeting include a reminder that OMB has – by all visible accounts – yet to take any action on the recommendation of the previous session of the Advisory Committee: that it updates its fee guidance, which currently dates from 1987 and is missing a key word.

The Searches subcommittee unveiled a draft set of recommendations to improve search capabilities and promote accountability. The recommendations include, but are not limited to:

• Requesting that the Justice Department collect detailed information as part of each agency’s Chief FOIA Officer Report regarding the specific methods and technologies agencies are using to search their electronic records, particularly email, in response to FOIA requests.
• Increasing the ability for FOIA offices to procure technology to aid federal agencies to more efficiently conduct records searches to the greatest extent possible.
• Ensuring that agency emails can be efficiently and accurately searched electronically by FOIA offices.
• Weighing the benefits of using eDiscovery tools to conduct more accurate and timely FOIA searches against the potential legal costs of untimely or inadequate FOIA searches.

(Earlier this year the National Security Archive and the Project on Government Oversight teamed up to conduct an online survey for both FOIA processors and requesters to better understand how agencies search for records. The summary and survey results can be found here.)

One of the most important issues for the Committee to issue guidance on this session will be 508 compliance (go here for more on 508, which refers to a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities). While not yet out of the Subcommittee, recommendations from the Committee should underscore that documents should already be being created 508 compliant by agencies before they are ever requested under FOIA or posted proactively. Further, agencies should only purchase FOIA processing software that produces documents that are 508 compliant. But perhaps most importantly, non-compliance with Section 508 of the Rehabilitation Act should not be used as a justification by agencies to remove documents from their FOIA websites or refuse to post information proactively.

FOIA Helps Show How Industry Lobbying Hamstrung DEA’s Most Potent Tool for Regulating Drug Companies

A must-read Washington Post/60 Minutes investigation exposes the drug industry’s covert, years-long effort to weaken the Drug Enforcement Administration – particularly the office that regulates the drug industry, the Office of Diversion Control – in its ability to suspend suspicious opioid sales to distributors across the country.

Prior to the passage of April 2016’s Ensuring Patient Access and Effective Drug Enforcement Act, the DEA routinely stopped suspicious sales (like when a drug company sends 258,000 hydrocodone pills in one month to a West Virginia town of 2,924) with an immediate suspension order. But the new bill “changed four decades of DEA practice” by requiring the agency to show that drug shipments did not just pose an “imminent danger” to the community, but “demonstrate that a company’s actions represent ‘a substantial likelihood of an immediate threat,’ a much higher bar.”

FOIA requests submitted by the Post and 60 Minutes show the bill had the drug industry’s desired effect; “Not a single [suspension] order has targeted a distributor or manufacturer since late 2015.” The DEA and the Justice Department have “denied or delayed” dozens more relevant FOIA requests on the issue, and the Post is suing the DOJ for the remainder of the records.

ICE Scrubs Documents on Controversial Deportation Program from FOIA Library

Immigration and Customs Enforcement (ICE) has re-launched its FOIA library after it spent nearly two weeks offline on ICE’s claim it was under review. But the new site is now at least 77-documents lighter. Russ Kick was first to note that the agency took the opportunity to scrub dozens of documents on the agency’s controversial “Secure Communities” program, a deportation program that was ended by the Obama administration and restarted under Trump. Kick has posted all of the deleted documents on AltGov2.org.

FOIA Releases Hint that Coal Industry Not Optimistic about Domestic Growth, Even Under Trump

FOIA requests to the Bureau of Land Management show coal industry executives acknowledging “the continuing decline in demand” for coal, and in some instances withdrawing lease applications for federal coal mining. The FOIA releases come after the Trump administration’s reversal of President Obama’s 2016 three-year moratorium on federal coal leases and the BLM’s request that companies update their applications in light of the reversal. The Washington Post’s Adam Federman notes that “In the six months since that announcement at the EPA, companies have withdrawn five of 44 pending lease applications, and at least eight are indefinitely on hold.”

The FOIA responses show coal companies citing “depressed” market conditions in withdrawing their leases, suggesting coal companies “have begun to lose faith in the long-term viability of the domestic market” and undercutting the Trump administration’s efforts to revive it by reversing Obama-era policies.

US Embassy Tracked Indonesia Mass Murder in 1965

The US government had detailed knowledge that the Indonesian Army was conducting a campaign of mass murder against the country’s Communist Party (PKI) starting in 1965, according to newly declassified documents recently posted by the National Security Archive.  The new materials further show that diplomats in the Jakarta Embassy kept a record of which PKI leaders were being executed, and that US officials actively supported Indonesian Army efforts to destroy the country’s left-leaning labor movement.

The 39 documents come from a collection of nearly 30,000 pages of files constituting much of the daily record of the US Embassy in Jakarta, Indonesia, from 1964-1968. The collection, much of it formerly classified, was processed by the National Declassification Center in response to growing public interest in the remaining US documents concerning the mass killings of 1965-1966.  American and Indonesian human rights and freedom of information activists, filmmakers, as well as a group of US Senators led by Tom Udall (D-NM), had called for the materials to be made public.

Trump’s Iran Misstep

“But the president missed the real takeaway from his stroll through history,” writes the National Security Archive’s Malcolm Byrne in his recent Washington Post article on Trump’s decertification of the Iran nuclear deal. “Precisely because the relationship has been so bitter, getting a major deal of any kind with Tehran — even one as unsatisfying as the Joint Comprehensive Plan of Action (JCPOA) — was a remarkable feat that is unlikely to be replicated. This is the reality of the deal that Trump and other critics simply haven’t grasped — and why they’re on track to make a major, perhaps irreversible, mistake in U.S.-Iran relations.” The article can be read in its entirety here.

Documenting US Role in Democracy’s Fall and Dictator’s Rise in Chile

The New York Times recently highlighted National Security Archive analyst Peter Kornbluh’s work on the Chilean Museum of Memory and Human Rights exhibit, “Secrets of State: The Declassified History of the Chilean Dictatorship.” “To see on a piece of paper, for example, the president of the United States ordering the C.I.A. to preemptively overthrow a democratically elected president in Chile is stunning,” Mr. Kornbluh told the Times. “The importance of having these documents in the museum is for the new generations of Chileans to actually see them.”

Peter Kornbluh curated the exhibition, which includes redacted documents and C.I.A. memos. Tomas Munita for The New York Times

The FOIA Ecosystem

Are you an American Society of Access Professionals member who will be in the D.C. area November 16? If so, please join us for a Food For Thought Training Seminar featuring National Security Archive director Tom Blanton. Blanton will discuss the FOIA ecosystem, lessons learned from his decades in the FOIA trenches, the symbiotic relationship between requesters and processors, and how both sides can work together to improve the FOIA process and release more information to the public. RSVP information can be found here.

The Cuban Missile Crisis at 55

The US military drew up plans to occupy Cuba and establish a temporary government headed by a US “commander and military governor” during the 1962 missile crisis, according to the recently declassified “Military Government Proclamation No. 1” posted Monday by the Archive to mark the anniversary.

“All persons in the occupied territory will obey immediately and without question all enactments and orders of the military government,” stated the proclamation. “Resistance of the United States Armed Forces will be forcefully stamped out. Serious offenders will be dealt with severely,” it warned. “So long as you remain peaceable and comply with my orders, you will be subjected to no greater interference than may be required by military exigencies.”

Defense Department redactions obscure the faces and insignia of honor guard members in many of the war casualty images.

TBT Pick – Return of the Fallen

This week’s #TBT pick is from 2005 and details the Pentagon’s release – in response to a FOIA lawsuit – of hundreds of previously secret images of casualties returning to honor guard ceremonies from the Afghanistan and Iraq wars and other conflicts.

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