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The FOIA Office is Not Siberia: FRINFORMSUM 1/11/2018

January 11, 2018

Officials at State Dept. Joke FOIA Office is ‘Siberia’

“The FOIA office was always the punch line of a joke around here, as in: ‘They’ll send me to the FOIA office,’” this, according to State Department officials quoted in a recent Hill article.

The officials also said being sent to the department’s FOIA office “is like being reassigned to ‘Siberia.’”

The remarkable, on-the-record quotes appear in a recent Hill article chronicling the admittedly questionable reassignment of the department’s Population, Refugees and Migration bureau head, Lawrence Bartlett, to the FOIA office – possibly as part of State Secretary Rex Tillerson’s attempt to reduce the FOIA backlog. The unusual move raised eyebrows considering, among other things, Bartlett’s rank and experience.

The specifics of Bartlett’s reassignment aside, the attitude towards the State Department’s FOIA office expressed by these officials is troubling. The State Department’s FOIA office depends on the responsiveness of the bureau offices because, once a FOIA request is received by the FOIA office, it is often tasked out to the appropriate bureau(s) to search for the documents, only after which are the documents returned to the FOIA office for a response to the requester. If this is the department’s attitude towards the FOIA shop, it’s no wonder that requests can stagnate at the State Department for years while the FOIA office waits for a response from bureau offices.

At the State Department, the ethos that “FOIA is everyone’s responsibility” is a critical one to internalize – and the above statements indicate that the State Department, even after the intense focus on the FOIA shop over the lawsuits for Hillary Clinton’s emails, has not learned its lesson.

It is additionally problematic that when news surfaces of agency officials belittling FOIA and FOIA offices, that the Department of Justice’s Office of Information Policy and the Office of Government Information Services, as well as the trade association the American Society of Access Professionals, do not – at least publicly – push back against the disparagement. In the future, they should make a concerted effort to do so.

Defense Officials Seek Unprecedented Control over Historical Reports on Nuclear Weapons Stockpile – With NARA’s OK

The Defense Threat Reduction Agency (DTRA) requested – and the National Archives and Records Administration (NARA) approved – a records disposition plan that allows DTRA to “retain custody of its reports on the U.S. nuclear weapons stockpile for 80 years or more after they were created. Under the disposition plan, the reports will be transferred to NARA in five-year blocs 80 years after the last year of the block.”

The Archive’s Nuclear Vault director, Dr. William Burr, has an excellent post on the ill-advised action here. He argues that the drastic schedule is likely unnecessary considering that today’s nuclear weapons stockpile is “profoundly different” than that of the 1960s, and because the Obama administration declassified aggregate stockpile numbers for the period from 1962 to 2009 in 2010 (the numbers through 1961 were declassified during the Clinton administration). Burr also notes that NARA is more than capable of storing the sensitive files; the agency “already stores and secures records that are probably far more sensitive than the weapons reports.”

Burr succinctly argues that, “To ensure that these reports are preserved for the historical record while also being made available to researchers within a reasonable time period, DTRA should disclaim its original request for 80 years and begin an orderly process to accession the oldest reports to the National Archives.”

This isn’t the only incident of NARA considering inappropriate records schedules proposals – see here and here for more.

508 Compliance Not an Excuse to Remove Docs from Agency Websites

The Environmental Data and Government Initiative and the Sunlight Foundation recently reported that the National Park Service is removing climate action plans from its website because the 92 documents were not compliant with Section 508 of the Rehabilitation Act. An NPS spokesperson said the agency was working to make the documents accessible by the January 18, 2018 deadline, at which point they would be re-posted. (Section 508 has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities and that federal employees with disabilities can access records with the same ease as their counterparts since 1998. I have written about why Section 508 compliance is often a red herring for agencies who don’t want to post records to agency websites here, here, here, here, and here.)

NPS’s intention to make the documents accessible and 508 compliant is the right one, but making the documents inaccessible for everyone while working towards that goal is misguided. A better approach would have been for NPS to keep the documents online while working to make them 508 compliant.

The NPS’s decision comes as the Federal FOIA Advisory Committee approaches its January 16 meeting, where it will vote on, among other issues, the proactive disclosure subcommittee’s recommendations for agencies’ compliance with Section 508. First and foremost, the recommendations “encourage agencies to remediate documents that are not currently 508 compliant—documents that have optical character recognition are also much easier for all individuals to search through and utilize. Nevertheless, we discourage the removal of information from agency websites that is useful to the public, even if the information posted is not fully compliant with Section 508 of the Rehabilitation Act. Agencies should ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”

The recommendations can be found here.

FOIA Helps Reveal Govt’s Use of Parallel Construction

Human Rights Watch has a must-read report on “a growing body of evidence” suggesting that the government is “deliberately concealing methods used by intelligence or law enforcement agencies to identify or investigate suspects—including methods that may be illegal.” The process is known as parallel construction.  The FOIA documents HRW examined included “historical documents posted in the online FOIA reading room of the Central Intelligence Agency (“CIA”); and trainings and other documents obtained under FOIA by the American Civil Liberties Union, the Electronic Frontier Foundation, and the journalist CJ Ciaramella.” One of the training notices obtained by Ciaramella and highlighted in the HRW report notes:

Our friends in the military and intelligence community never have to prove anything to the general public. They can act upon classified information without ever divulging their sources or methods to anyway [sic] outside their community. If they find Bin Laden’s satellite phone and then pin point his location, they don’t have to go to a court to get permission to put a missile up his nose.

We are bound, however, by different rules.

Our investigations must be transparent. We must be able to take our information to court and prove to a jury that our bad guy did the bad things we say he did. No hiding here. However, we are also bound to protect certain pieces of information so as to protect the sources and methods.

To use it…., we must properly protect it.

Legal Fees over Contraception Coverage

A FOIA request from Buzzfeed News has won a series of settlement agreements showing that that the Trump administration “agreed to pay $3 million in legal fees and costs to settle lawsuits filed by the law firm Jones Day against the Obama administration over the Affordable Care Act’s contraception coverage mandate.” Jones Day, a firm with considerable ties to the Trump administration, initially sought $29 million. Buzzfeed notes that “The settlement agreements are part of a larger effort by the Trump administration to undo the contraception mandate and to work with groups that challenged it while Obama was in office.”

TBT Pick – The Yellow Book

This week’s #tbt pick is chosen with the recent Trump administration decision to end the protected status of 200,00 Salvadorians living in the U.S. since 2001 after earthquakes devastated the country in mind. This week’s pick is a 2014 posting on “The Yellow Book,” a 1980s-era document from the archives of El Salvador’s military intelligence that identifies almost two thousand Salvadoran citizens who were considered “delinquent terrorists” by the Armed Forces, among them current President Salvador Sánchez Cerén, a former guerrilla leader. The document was posted on-line, along with related analysis and declassified U.S. documents, through a collaboration between the National Security Archivethe University of Washington Center for Human Rights and the Human Rights Data Analysis Group (HRDAG).

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