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NARA Unauthorized Destruction Chart Highlights Troubling Pattern of Disappearing Records and Encrypted Messaging Apps: FRINFORMSUM 3/29/2018

March 29, 2018

NARA Publishes First Unauthorized Destruction Chart

This week the U.S. National Archives published its first “unauthorized disposition of federal records” chart. The chart – which includes both open and closed cases and will be updated monthly –  catalogs all of the cases NARA investigated in Fiscal Year 2017 concerning the “actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records.” The chart includes NARA’s correspondences with the agencies when available.

A quick look shows that the departments of State, Interior, Agriculture, and Justice were the most frequently investigated agencies, and that disappearing records and encrypted messaging applications were a common theme. Some “highlights” from the chart are:

  • An investigation into the Environmental Protection Agency for allegedly using the “encryption messaging application, Signal, to achieve specific goals circumventing the government’s ability to monitor communication related to government business and to covertly avoid federal records requirements.”
  • An inquiry into the National Oceanic and Atmospheric Administration, which “may illegally be destroying records (electronic messages through Skype and Google Chat) of a recent meeting discussing new regulations against the fishing industry.”
  • A Department of Defense case concerning DoD IG employees Lynne Halbooks and Henry Shelley, who “are subjects of court investigation that they allegedly destroyed documents in DoD IG’s investigation of former NSA whistleblower Thomas Drake. In March 2016, the Office of Special Counsel referred the case to the DOJ where it remains under review.”

OGIS Empowerment Act A Common-Sense Improvement, Moves to Senate

The Office of Government Information Services Empowerment Act of 2018 was passed out of the House this week (H.R. 5253) and will hopefully be taken up by the Senate. The bill states that “Each agency shall make any record available to the Director of the Office of Government Information Services for purposes of carrying out this subsection, upon request of the Director.”

This amendment would address a current bureaucratic bottleneck OGIS faces – agency System of Records Notices (SORNs). Currently, as OGIS notes in its blog, “an agency is not allowed to routinely share a FOIA file with another agency unless it obtains the requester’s consent for a file to be shared or notifies the public by updating its PA Systems of Records Notice (SORN) to include routine-use language for OGIS.  If an agency has not published a Privacy Act SORN letting the public know that its files might be shared with us, we must first obtain written authorization from the requester before we can discuss his or her request with the agency.” This is a time-consuming process when a requester has sought out OGIS’s mediation services.  If taken up by the Senate and passed, the bill would also save agencies money because it wouldn’t require each individual agency update their SORN’s in the federal register to include OGIS language.

Congressman Could See How CRS Reports “would be in great demand by newspapers and women’s clubs, and so forth”

The Washington Post highlights the transparency win in the omnibus spending bill recently signed into law by President Trump – public access to Congressional Research Service reports. Trump’s signature lifted a 64-year-old ban that stemmed from concerns about the cost of making “photostatic” copies and that kept the CRS from sharing its research with the public – which has paid more than $100 million a year for the work. Of the initial ban on making CRS reports public Sen. Karl E. Mundt (R – S.D.) said, “I can see how that kind of analysis would be in great demand by newspapers and women’s clubs, and so forth, and unless put on some compensatory basis would run to quite an expenditure.”

The provision that frees the CRS reports was included in the recent spending bill thanks to the work of Senators Patrick Leahy (who “took advantage of his position as vice chairman of the Senate Appropriations Committee to slip the language into the legislation”) and John McCain and Representatives Mike Quigley and Leonard Lance.

CIA’s In-House Board Games Can Now be Yours Thanks to FOIA

The CIA has released the art, rules, and design documents for two board games – Kingpin: The Hunt for El Chapo and Collection Deck – it used at a South by Southwest event thanks to a FOIA request. Ars Technica reports that it is difficult to determine the precise rules for either game, nothing that Collection Deck’s rules are especially vague because the agency’s internal training cards “are marked up to an incredible degree, since they refer to a number of apparently classified intel-collection practices.”

The CIA is not new to board games – or toys in general. In 2014 a Washington Post article revealed that the agency had plans to make the scary doll – whose face was designed to frighten children and painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings” – and to distribute them in Afghanistan or Pakistan.

Judge Reinforces Government’s Sourcing ‘on Background’ in FOIA suit

U.S. District Judge Gregory Woods ruled in the government’s favor in a FOIA lawsuit trying “to shed light on the U.S. government’s anonymous press briefings.” In the 51-page ruling, Woods supported the State Department’s decision to withhold the names of officials in background briefings, finding “that public interest is insufficient to tip the scale in favor of disclosure.” The judge went on to note a “Second Circuit ruling that found Department of Defense employees especially have a vested interest in anonymity.”

The Archive’s John Prados Talks John Bolton and National Security

The National Security Archive’s John Prados recently discussed John Bolton, Mike Pompeo, Gina Haspel, and national security with Late Night Live on Australia National Radio. Check out the interesting interview here.

Key Targets for SAC Forces.

TBT Pick – U.S. Cold War Nuclear Target Lists Declassified for First Time

This week the Washington Post highlighted a top secret 1956 Strategic Air Command nuclear target list released to and published by the National Security Archive. The remarkable document – which includes planning targets, 200 in Moscow alone – was used to show that, in President Trump’s first year, the size of the US nuclear arsenal was the smallest it had been since the 1956 document was created.

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