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FOIA’s Foreseeable Harm Standard Tested in Court: FRINFORMSUM 12/7/2017

December 7, 2017

Text of S. 337 – The FOIA Improvement Act of 2016

Foreseeable Harm Standard Tested in Court

The Ecological Rights Foundation is suing the Federal Emergency Management Agency in the U.S. District Court of Northern California in what may be the first case mentioning the foreseeable harm standard language that was added to the FOIA with the FOIA Improvement Act of 2016.

The law, regarding foreseeable harm, says: “(8)(A) An agency shall (i) withhold information under this section only if (I) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b).”

In its decision the District Court notes, “Lastly, FEMA fails to explain how disclosure would expose FEMA’s decision-making process so as to discourage candid discussion. FEMA also does not provide any justification for how the agency would be harmed by disclosure as required by the FOIA Improvement Act of 2016. 5 U.S.C. § 552(a)(8)(A)(i). Absent a showing of foreseeable harm to an interest protected by the deliberative process exemption, the documents must be disclosed. In failing to provide basic information about the deliberative process at issue and the role played by each specific document, FEMA does not meet its burden of supporting its withholdings with detailed information pursuant to the deliberative process privilege.”

Release to One, Release to All

Cause of Action’s Tyler Arnold recently penned an op-ed for The Hill on the need to finalize the “Release to one, Release to All” FOIA rule – a call the National Security Archive fully endorses. Practically, Arnold notes that “Release to one, Release to All also could help improve the FOIA process at agencies. Publicly releasing records would eliminate the need to process redundant FOIA requests and increase efficiency by allowing requesters to more finely target their requests.”

The release policy, the subject of an October 31 letter, addressed to the Office of Management and Budget and the Justice Department’s Office of Information Policy and co-signed by the National Security Archive and two dozen other groups, has yet to take effect. The October letter notes, “Despite soliciting and collecting public comments on the proposal in December 2016, now under the Trump Administration, OIP has failed to finalize the policy or respond to multiple requests about its plans either to finalize or abandon the policy. This silence after soliciting public feedback on a proactive disclosure policy is particularly troubling.”

Flynn Records Denied

The Defense Intelligence Agency (DIA) recently denied FOIA requests from the National Security Archive, the Associated Press, and Buzzfeed News –  all made years apart – concerning former national security adviser and DIA head Michael Flynn, saying doing so “could reasonably be expected to interfere with on-going law enforcement investigative activities.” The exemption prompted speculation that Flynn’s tenure as DIA director is a subject of Robert Mueller’s special counsel investigation.

AP’s FOIA requests, all filed this year, sought Flynn’s public and private DIA calendars and correspondences from 2012 through 2014; Buzzfeed’s request, filed three years ago by Jason Leopold but denied on the same day as APs, sought “Flynn’s emails, job evaluations, and other records related to his work as the agency’s director.”

“Bolsheviki appear to have control of everything here” moving “faster and faster towards – what?” US Diplomats’ and John Reed’s accounts of the 1917 Russian Revolution

“Bolsheviki appear to have control of everything here” moving “faster and faster towards – what?”

The Archive’s Able Archer 83 project director, Nate Jones, recently penned a blog for the Society for U.S. Intellectual History on US Diplomats’ and journalist John Reed’s accounts of the 1917 Russian Revolution. Jones notes that, “In their own way, both accounts report the tense, anxious, fearful, hopeful, unknown atmosphere in Petrograd during the waning days of October, 1917.” Read the riveting account here.

U.S. Presidents and the Nuclear Taboo

U.S. presidents sometimes made nuclear threats in the course of Cold War crises and confrontations, but powerful social norms – not just military considerations – inhibited them from initiating the combat use of nuclear weapons, according to declassified documents recently posted by the Archive.

From President Truman forward, the record shows, U.S. commanders-in-chief have been sensitive to what is sometimes referred to as the nuclear taboo – the recognition that atomic weapons belong to an entirely different category from conventional armaments and that their use would open up “a whole new world,” in the words of President Kennedy.

With growing international concern today over the possible resort to nuclear means in connection with tensions over North Korea’s growing capabilities, it is instructive to look at the record of the Cold War and immediate post-Cold War period to see how U.S. presidents and senior government officials thought about the problem.  The Archive’s most recent posting of CIA, State Department, and other materials covers the era from the 1940s to the 1990s including events from the Cuban missile crisis and the Vietnam War.

Cyber Vault: Privacy Tech – circa 1944

An October 12, 1944, Office of Scientific Research Committee report on decoding speech codes that focuses on speech privacy is one of the newest additions to the Archive’s Cyber Vault. The document presents information on phone intercept, encryption, and privacy technologies and methods during WWII. A chapter on intercepting includes a discussion of types of radio systems used, intercepted signal quality, receiving sets, and decoding tools, among other topics.

The first Chinese nuclear test, 16 October 1964, had an explosive yield of 22 kilotons (Photo from Web site of Comprehensive Test Ban Organization)

TBT Pick – China’s First Nuclear Test 1964 

This week’s #TBT pick is a 2014 posting from our Nuclear Vault on China’s advance towards the nuclear club in 1964 and a wide range of declassified U.S. documents on the Chinese nuclear program.

For several years prior to 1964, U.S. intelligence had been monitoring Chinese nuclear developments, often with anxiety, hampered by the lack of adequate sources. Early on, opinions within the U.S. government varied widely — from the views of RAND Corporation and State Department INR [Intelligence and Research] analysts who estimated that a nuclear-armed China would be “cautious” to the Institute for Defense Analyses, which saw “increase[d] risks for the United States and its allies that China will escalate hostilities to the point of initiating nuclear operations.” As the Chinese nuclear test approached, the Defense Department’s Office of International Security Affairs was alone in taking an alarmist view, projecting 100 million dead Americans in the event of conflict with China in 1980.

The entire posting can be found here.

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