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Presidential Records Act Lawsuit Targets White House’s Disappearing Messaging Apps: FRINFORMSUM 1/18/2018

January 18, 2018

Federal Judge Hears Oral Arguments in Presidential Records Act Case Targeting Disappearing Messaging Apps

Lawyers for the National Security Archive and Citizens for Responsibility and Ethics in Washington (CREW) argued this week that their case – alleging that the White House is not upholding its responsibilities under the Presidential Records Act – has grounds to proceed in spite of the government’s motion to dismiss. Oral arguments were heard by Judge Christopher Cooper in the District Court for the District of Columbia.

CREW and the Archive first filed suit in June 2017 on the heels of reports that some members of the White House staff were using messaging apps, like Confide, that prevent the storage and preservation of records.

This week Justice Department lawyer Steven Myers argued that the court did not have the jurisdiction to hear the case, saying “Courts cannot review the president’s compliance with the Presidential Records Act.”

The scope of the PRA, however, has been “defined by litigation” brought by the National Security Archive, such as when the Archive “sued at the end of the Reagan administration to preserve email backup tapes that provided evidence in the Iran-contra scandal — that produced the appeals court rulings in the 1990s — or when it and CREW in 2009 won the restoration of 22 million emails from George W. Bush’s presidency.”

CREW’s Anne Weismann countered the DOJ’s argument saying, “If this court found there is no judicial review here, then I think the president and White House would be granted license to ignore all Presidential Records Act obligations.”

The suit also challenges the Trump administration’s use of Executive Orders, saying it has the potential to transform “into presidential records what would otherwise become federal agency records, allowing them to be cloaked in secrecy.”

Judge Cooper said he would rule “in due course” on the government’s motion to dismiss.

There was no mention during the oral arguments of the “Trump administration’s move to ban personal electronic devices from the White House,” which would likely effect staffers’ use of such apps.

FOIA Advisory Committee Votes on Common-Sense Recommendations for Searches, Access

At its most recent meeting the FOIA Advisory Committee unanimously voted to support the recommendations – ranging from general guidance and specific steps agencies should take – developed by the committee’s subcommittees. The Office of Government Information Service’s (OGIS) blog summarizes the approved recommendations as follows:

  • increase the release of agency FOIA logs in a way that is most useful to improving understanding of agency records and how the law is being used;

  • provide agencies with criteria for setting priorities for proactive disclosure;

  • give agencies a guide to categories of records that should be regularly released based on the ease of making them available and their importance for understanding the government’s actions; and

  • address requirements that documents on agency’s FOIA websites are accessible to individuals with disabilities.

The Advisory Committee also passed recommendations instructing agencies to ensure that they are taking steps to efficiently and accurately search emails in response to FOIA requests.

The concrete and common-sense recommendation concerning 508 compliance advised agencies not to remove documents from their websites (as has troublingly occurred recently), encouraged common-sense remediation practices (including simple Optical Character Recognition scans) and explained that unremediated documents can still be posted online if they meet an “undue burden standard” included in the Rehabilitation Act. Ripe targets for this “undue burden standard” include documents not “born in electronic format” and large, voluminous records. Until now, there has been no recommendation or guidance on how to proactively post documents online by the Access Board, DOJ OIP, or OGIS. Hopefully this unanimous recommendation by the Federal FOIA Advisory Board will increase the speed, quantity, and quality of documents that the federal government posts online for the public to have access to.

The Advisory Committee’s next meeting is April 17.

SEC Wants to Make it Harder to File FOIA Requests from Educational Institutions

SEC’s proposed rule change for FOIA requests from educational institutions.

The Securities and Exchange Commission has proposed a rule that would make it harder – and potentially more expensive – to file FOIA requests from an education institution.

Currently, to be recognized as filing a FOIA request on behalf of an educational institution, and conversely to qualify for favorable fee status, the FOIA only requires that the affiliated organization “have a purpose of scholarly or scientific research.”

The Securities and Exchange Commission, however, has proposed a rule that would make it significantly harder to qualify. The proposed rule would require that “A requester in this fee category must show that the request is authorized by, and is made under the auspices of, an educational institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research.”

As reported in JD Supra, this “makes two potentially important changes to the statutory requirement.  First, the statute merely requires the disclaimer of a commercial purpose, the SEC’s rule requires a showing of scholarly purpose.  Second, the SEC’s requirement narrows the noncommercial purposes to only ‘scholarly research’.  While this may seem little more than a cavil, the SEC should not be allowed to erode the FOIA by subtly shifting statutory requirements.”

Comments are due by February 2.

CIA Will Release Fudge Recipes but not post-WW II Clandestine Service Histories

Benajmin Wittes recently submitted a FOIA request to the CIA for director Mike Pompeo’s 2017 holiday message to agency personnel after hearing complaints that the message was overtly political – and, in response, received a personal note from Pompeo defending his message.

A copy of the message was included in the response (along with Pompeo’s family fudge recipe).

Curiously, while the message was redacted, it was not released through FOIA (if it had been, classification markings would be crossed out, there would be exemptions cited for the redactions, and there would be a denial letter advising the requester their appeal rights). Taking the FOIA response out of the FOIA track is, in this instance, probably harmless enough, but is at an odd precedent and time that would have been better spent releasing historical documents of actual importance – like agency clandestine service histories from the 1940s and 50s – that the CIA continues to hide.

A “Harsh and Terrible…Solution”

A new book by long-time colleagues of the National Security Archive, James G. Blight and janet M. Lang, offers a fresh exploration of the 1962 Cuban missile crisis and plumbs its lessons on the continuing dangers of nuclear war.

Homing in on the Cuban perspective, Dark Beyond Darkness aims to fill a persistent gap in the history – the general dismissal of Cuba’s stake – that not only skewed our understanding of the event for years but helped make the crisis so perilous in the first place. It places the Cuban dimension squarely at the center of the reader’s line of sight, allowing for an in-depth appreciation of the “physical and psychological reality faced during the crisis by everyone in Cuba” as they struggled to deal with the seemingly existential threat presented by the superpowers’ ill-informed and self-absorbed mutual face-off.

A flyer in which five independent initiatives invite citizens to participate on January 15, 1989 in a Jan Palach memorial in Prague, as well as a January 21 pilgrimage to his grave in the village of Všetaty (30 km north of Prague).

TBT Pick – Jan Palach Week, 1989

This week’s #TBT pick is chosen with the anniversary of “Palach Week” in mind and is a 2009 posting on the beginning and end of Czechoslovak Communism. The posting contains documents from the secret police, the Communist Party, and dissident documents posted jointly by the Czechoslovak Documentation Centre (Prague) and the Archive.

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