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Forecast for Sunshine Week: Real, Structural Problems with FOIA Punctuated with Bright Spots and Reason for Optimism: FRINFORMSUM 3/8/2018

March 8, 2018
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New FOIA.gov for Sunshine Week

The Justice Department just launched the new FOIA.gov to inaugurate Sunshine Week –  the national celebration of open government and freedom of information. Sunlight Foundation’s Alex Howard has a positive review of the new site (which Archive staff contributed comments and feedback for during its alpha phase), concluding “FOIA.gov is a sterling example of what people can build together, over time, when Congress mandates action in the wake of an agency not following through on an open government commitment.” Congrats to 18F for its hard work building the improved site, but it is important to note that the site will only live up to its full potential if agencies improve their searching and processing of requests on the back end.

Check out the new portal and let DOJ know what you think at National.FOIAPortal@usdoj.gov.

Other Sunshine Week events coming up in the D.C. area include:

A full list of events around the country can be found at SunshineWeek.org.

Archive’s 2018 Government-Wide FOIA Audit Coming Soon

The National Security Archive’s 17th Freedom of Information Act Audit is coming soon – with disappointing results of a government-wide survey intended to see how well agencies were searching email in response to FOIA requests.

An earlier series of Archive audits on agencies’ outdated FOIA regulations spurred Congress to mandate that agencies update their regulations within 180 days of passing the FOIA Improvement Act of 2016. (Our 2017 Audit showed that three out of five agencies didn’t update their FOIA rules in spite of Congress’ order to do so.)

In a metaphorical example of the state of FOIA, the EPA recently redacted a document using duct tape. Via Chris Horner

FOIA Still a Colossus. But Will it Thrive?

The Archive’s FOIA Project director Nate Jones has published a must-read article on the state of the Freedom of Information Act as we gear up for Sunshine Week. In the face of arguments that robust transparency is a bad thing, or that the FOIA is crippled and ineffective, Jones’ words speak for themselves:

While noting that it would be a lie if we didn’t acknowledge that FOIA faces real structural problems and ongoing agency efforts to weaken it, Jones argues that FOIA “is a colossus that makes national and local headlines daily, it proves that presidents lie, it tells citizens what their military and intelligence agencies are doing in their name.  But it is exactly because of FOIA’s success and potential that those who prefer secrecy attempt to weaken it both by overt attacks and by active neglect.  Despite this, I am optimistic about FOIA’s future.  It is a uniquely American law that provides us the power to force our government to disclose our secrets.  It will survive, but will it thrive?”

MuckRock: 9 Days of FOIA Exemptions and an Important Email Win 

MuckRock is winding up its countdown to Sunshine Week and Nine Days of FOIA Exemptions: a nine-piece series taking a closer look at each of the FOIA’s nine exemptions. The postings explain what the exemptions really mean behind the statutory language, spurious examples of their invocations, suggestions on how to appeal a particular exemption, and highlights useful additional resources – like FOIA Wiki. (I particularly liked Exemption 3 “No Homers” Day, but they are all worthwhile reading.)

And congratulations to MuckRock for an important win over the CIA in an ongoing FOIA lawsuit concerning the agency’s CREST database. The court found that the agency “can’t require you to know both who sent and received an email when requesting electronic records.” MuckRock is being represented pro bono by the National Security Counselors.

Confirmation of HUD FOIA problems

A second Department of Housing and Urban Development (HUD) official has confirmed that the agency under Secretary Ben Carson is processing politically sensitive FOIA requests “in a fashion different from the normal process” and that the FOIA office faces “undue influence” to handle them outside the normal process. The comments come from Marcus Smallwood and in support of Helen Foster – a HUD employee who made news last week after being demoted to the agency’s FOIA office; while there Foster raised the alarm that the office was understaffed and that she was prevented from handling FOIA requests submitted to the agency by the Democratic National Committee because a Trump appointee believed her a Democrat. “Smallwood accused Carson and senior Hud managers of reprisals against not only Foster for blowing the whistle on the furniture spending, but also of letting important business go uncompleted due to the interdepartmental feud.”

FOIA Suit Tackles HUD’s LGBT Housing Stance

A FOIA lawsuit is seeking information behind HUD’s decision to distance itself from LGBT homelessness and housing issues. The suit specifically seeks information on the agency’s decision under the Trump administration to remove a guide from its website that “provided training on how to provide transgender people equal access in homeless shelters” and why the agency cancelled two pilot programs to reduce LGBT homelessness and disengage from a study on LGBT housing discrimination.

New Findings on Clerical Involvement in the 1953 Coup in Iran

Senior Iranian clerics reportedly received “large sums of money” from U.S. officials prior to the August 1953 coup against Prime Minister Mohammad Mosaddeq, according to a contemporaneous British document located by researchers at the U.S. National Archives and recently posted in full for the first time by the Archive.

The Archive’s Iran Project also published a version of The Battle for Iran, one of three internal CIA histories produced about the coup.  Like the British memo, the document has been released before but with heavy excisions.  The CIA reviewed Battle again and declassified substantial portions of it in response to an Archive Mandatory Declassification Review request.

The role of clerics is one of the remaining unanswered questions surrounding Mosaddeq’s ouster.  More specifically, it is uncertain whether religious figures obtained funds from the West – and if so whether they knew the source of those funds.  The records provide further information on that and other topics, which will continue to be matters of intensive debate.

Archive Analysts in the News

The Archive’s Vietnam Project director, John Prados, recently published an excellent addition to The New York Times’ Vietnam ’67 project. Prados’ article – “Who Threw Westmoreland Under the Bus?” – is the story behind a major turn in the U.S. war effort – and the end of Westmoreland’s controversial tenure in the field – thanks to a “bus” driven by a combo of competing military priorities, presidential politics, bureaucratic obstruction, congressional umbrage, and growing public war-weariness.  All accelerated by critically important reporting by the news media.

Want to know what the U.S. government isn’t telling you about the “sonic attacks” in Cuba? Then check out Cuba Project director Peter Kornbluh’s latest installment for The Nation. The key takeaway about the attacks – which prompted travel warnings and led to a reduction in staff at the U.S. Embassy in Havana – is that the primary victims were CIA agents. Not a single tourist was affected, and the island remains among the safest countries in the world to visit. The article can be read here.

The Economist, analyzing what Kim Jong Un’s recent diplomatic efforts towards South Korea might portend, uses a recent Archive posting – Engaging North Korea II: Evidence from the Clinton Administration – to see what lessons can be drawn from earlier attempts at dialogue. The article, citing a declassified June 2000 cable from Stephen Bosworth wondering if talks would lower nuclear tensions on the peninsula or if the offer was a trap, finds: “it is always a mixed blessing when North Korea’s reclusive, murderous regime says that it wants to talk.”

TBT Pick – Agencies on Alert over Preserving Email

This week’s #TBT pick is chosen with the upcoming Sunshine Week in mind and is the Archive’s 2016 email alert, which analyzed agencies self-assessments about whether or not they were prepared to manage all of their email electronically by the December 31, 2016, deadline. Even through the rosiest-colored glasses of a self-assessment, three agencies admitted they wouldn’t meet the deadline, and one in six agencies didn’t even bother to turn it in.

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