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Judge Finds No Legal Basis for Commerce’s Exorbitant FOIA Fees, Declassified US Docs on Rios Montt, and More: FRINFOMRUSM 4/5/2018

April 5, 2018

AP photo/Nick Ut

Judge Finds No Legal Basis for Commerce Dept. Attempt to Charge Hundreds of Thousands for Two Data Sets

A federal judge has ruled against the Commerce Department and in favor of reporter David Yanofsky in a FOIA lawsuit targeting the agency’s attempt to charge exorbitant FOIA fees. Specifically, the court found no legal basis for Commerce’s attempt to charge nearly $174K for access to government immigration data and ordered the agency to re-evaluate the fees; Yanofsky says the fees now “will likely cost me less than $30—possibly even nothing at all.”

For years the Commerce Department maintained that Yanofsky had to pay $173,775 for two databases because “it only gives that information to people and companies that pay for the privilege.” The databases are the only comprehensive records on who enters the US; one database is on anonymous immigration records and the other statistics about international air travelers. Yanofsky says “a representative for the International Trade Administration initially told him that the DOC bureau ‘did not want to release the records to [him] because it wanted to protect the revenue the data generated.’” Yanofksy correctly argues, however, that “Just because there may be a market for this information shouldn’t make it exempt from public disclosure.”

New York Court of Appeals OK’s NYPD Glomar

The New York state Court of Appeals has upheld a lower court ruling that the New York Police Department can invoke a Glomar response to requests from citizens wanting to learn if they were the subject of NYPD surveillance. In the original ruling, which was “the first time New York courts have considered the Glomar doctrine, which isn’t established in the statutory language of the FOIL or previous state caselaw,” the court found that because of the “heightened law enforcement and public safety concerns identified in the affidavits of NYPD’s intelligence chief, Glomar responses were appropriate here.” The appeals court agreed.

Prior to the NYPD’s usage, the Glomar response, in which the government says it can neither confirm or deny it has the records in question, has only been invoked by the federal government – and then primarily by intelligence agencies in cases that concern national intelligence information.

The New York Appeals Court ruling is troubling because Glomars are considerably more difficult to appeal than a regular FOIA denial, and it paves the way for other local law enforcement agencies to invoke the secrecy-catch-all.

If you are curious about the history of the Glomar response – named after the CIA’s six-year attempt to salvage a Soviet nuclear submarine from the bottom of the Pacific during the height of the Cold War – check out Nate Jones’ blog on history of the operation and how it became public.

Ríos Montt leaves the Guatemalan tribunal, where he is being tried on genocide charges. (Photo credit: Daniel Hernández-Salazar)

Ex-Guatemalan Dictator Efraín Ríos Montt Has Died – Declassified Documents Describe Brutal Tactics

Recently-deceased Guatemalan dictator Ríos Montt’s decision to purge and reorganize the military in the 1980s prepared the armed forces for what would become the most intensive phase of the counterinsurgency in the conflict’s twenty-year history. Under Rios Montt the army’s strategists began to plan the scorched earth operations that would decimate the Mayan regions of the country in the months to come.

Some of the contemporaneous US records noted:

  • “The army intended to act with two sets of rules, one to protect and respect the rights of average citizens who lived in secure areas (mostly in the cities) and had nothing to do with subversion. The second set of rules would be applied to the areas where subversion was prevalent. In these areas (‘war zones’) the rules of unconventional warfare would apply. … Guerrillas would be destroyed by fire and their infrastructure eradicated by social welfare programs.”
  • In a report dated May 23, 1983, the CIA pointed out that “The insurgency has already forced the military, the strongest institution in Guatemala, to acknowledge that long-ignored sections of the country like the Western Highlands are exploitable political power bases.”
  • That same month, the US Embassy declared that the Junta “has announced a pacification campaign based on the two F’s, ‘Fusilesand Frijoles (Rifles and Beans).’ It has announced instructions to the security forces to ‘protect campesinos, not repress them.’ It has arranged mass demonstrations of civilian militiamen in the war torn ‘Ixil Triangle’ of Quiché, and provides food and medical aid to Quiché refugees… The Junta has clearly embarked on a campaign to win the hearts and minds of the campesinos, and probably to improve the GOG’s international image.”

Learn more about his scorched earth counterinsurgency campaign and 2013 indictment for crimes against humanity on our Guatemala Project page.

Why We File

To celebrate Sunshine Week 2018, the National Security Archive’s FOIA Project director Nate Jones talks to the Export Import Bank about the Freedom of Information Act from a requester’s perspective.  Watch the video here.

MLK in 1963. AFP.

TBT Pick – “Disreputable if Not Outright Illegal”

This week’s #TBT pick is a 2013 posting highlighting a declassified NSA history that divulges the name of prominent Americans surveilled during the Vietnam era – including Martin Luther King, Jr. King’s status as an NSA target was previously speculated, but the NSA declassification is the first time it was officially declassified. The multi-volume study, American Cryptology during the Cold War, also reveals:

  • An August 1961 intercept provided advance warning information of the East German decision to close the intra-Berlin borders, the action that led to the Berlin Wall.
  • Weeks before the Cuban Missile Crisis occurred, the NSA detected that the Soviets put military forces on higher alert and stood down their strategic bomber fleet. Apparently Moscow was worried that the United States had discovered the missile deployments.
  • NSA wiretaps on Panama’s president Omar Torrijos during the 1970s may have given U.S. diplomats an advantage in the negotiations that produced the Panama Canal Treaty.

Read more here.

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