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NDAA Includes More Unnecessary B3 Exemptions, What Happens to the Records Trump Destroys at His Private Properties, and More: FRINFORMSUM 6/15/2018

June 15, 2018

NDAA Includes More Unnecessary B3 Exemptions

The current version of the National Defense Authorization Act contains four proposed (b)(3) exemptions that will prevent the public from knowing information it should have access to. (B)(3) is an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has closer to 250including one about watermelon production data. Statutory exemptions give the DIA, NSA, DOD components, and others far more leeway to hide information than other agencies.

The (b)(3)s included in the latest NDAA include the Cyberspace Solarium Commission, providers of information technology products and services who have obligations to foreign governments, the Defense Department’s registry of disclosures, and the export control enforcement authority.

Information that should be public will likely be hidden as a result of the proposed (b)(3) exemptions, and the information that the exemptions are rightfully trying to keep secret could be withheld under existing exemptions to the FOIA (probably (b)(1), (b)(5), and (b)(7)) rendering the proposed exemptions an unnecessary and harmful impediment.

NARA Can’t Stop the President from Destroying Official Records, Forcing Staff to Tape them Back Together – Begging Questions About Records Destroyed at Trump Properties

News broke this week that President Trump has a habit of ripping up his papers once he’s done with them, meaning that White House records management specialists charged with preserving federal records have to puzzle the documents together with scotch tape. Unable to disabuse the President of his habit of destroying documents, “Staffers had the fragments of paper collected from the Oval Office as well as the private residence and send it over to records management across the street from the White House for Lartey and his colleagues to reassemble.”

The National Archives maintains that it has no role enforcing the President’s records keeping actions and that it can only provide guidance.

The issue is concerning enough in Washington, but raises larger questions about what happens to official records that the President destroys at his private residences far from DC – where he spends months of the year and where there are no records keeping officials taping them back together at the end of the day.

NDC Seeking New Director 

NARA’s National Declassification Center, stood up in 2010 and charged with coordinating declassification practices across agencies and reviewing records already in NARA’s custody for declassification, is seeking a new director. Founding director Sheryl Shenberger is stepping down after an eight year stint, and the job is open to both government and non-government employees. The Archive has been one of NDC’s frequent critics, but has been pleased to see the direction the NDC has taken over the last few years, most especially the introduction of its indexing on demand program in 2015, which allows the public “to select specific entries that the National Declassification Center (NDC) should prioritize for release.” Hopefully NDC’s next director will continue working to use the Center to declassify as much government information as possible.

John Kelly Warned about FOIA “in the Cesspool”

Documents obtained by Jason Leopold and Buzzfeed in a FOIA lawsuit show President Trump’s chief of staff, John Kelly, had an adversarial relationship with FOIA during his tenure as head of the Department of Homeland Security. In one email instructing someone (it’s unclear if the person is a DHS employee or private citizen) not to email, Kelly says, “FOIA is real and everyday here in the cesspool, and even federal court action on personal accounts is real.” At the time most of DHS’s focus was on immigration. Kelly later explained that he wanted the individual to stop emailing because the DHS employees who voted for Hillary Clinton in the 2016 election “find some of the postings offensive” – although the “cesspool” email also warned the recipient about the danger of leaks, and cautioned the person to be careful, “infinitely more than you had to in the past.”

The documents also confirm that Kelly’s personal email had been hacked, and that Kelly started conducting most business by phone and face-to-face meetings as a result.

FOIA Suit for Documents in Kushner-led Office Continues

The Office of American Innovation, an office set up by the Trump administration to reduce the size of the federal bureaucracy and maintained within the White House and led by Jared Kushner, should accept and process FOIA requests – this according to an ongoing FOIA lawsuit brought by Democracy Forward and Food & Water Watch. This week the plaintiffs filed a brief in federal district court challenging the administration’s position that the office exists only to advise the president, and is therefore exempt from FOIA. Plaintiffs argue that the office launches initiatives, implements programs, and imposes duties on government agencies, and therefore is not exempt.

There are currently six Executive Offices of the President subject to FOIA: the Office of Management and Budget, the Council of Economic Advisers, the Office of National Drug Control Policy, the Council on Environmental Quality, the US Trade Representative, and the Office of Science and Technology Policy.

The White House Office of Administration was subject to FOIA until a 2015 Obama-era rule exempted the office from FOIA.; while the rule was issued during the Obama administration, the office stopped complying with FOIA requests during the Bush administration.

Other EOPs, like the National Security Council, have been found by courts not to be subject to the FOIA.

IRS Needs 13 years to Search Email of 165 Employees

A federal judge in the U.S. District Court for the District of Columbia rejected Cause of Action’s challenge to the IRS’s motion for summary judgement in a FOIA suit seeking documents concerning the Craig memo – a 2009 memo from White House Counsel Gregory Craig instructing “all federal agency and department general counsels to consult with the White House on all document requests that may involve documents with ‘White House equities.’” (What constitutes White House equities remains vague.)

The case also sheds light on agencies’ ongoing inability to search email. The IRS informed Cause of Action during the course of the suit that it had no responsive records. Cause of Action argued that the IRS’s search was unduly narrow – in no small part because the agency didn’t conduct a search of employee email accounts, arguing it would be too burdensome. The IRS argued, for instance, that “would take one IRS IT person at least 13 years . . . to capture all of the emails of the[ ] 165 employees” in one IRS bureau alone.

The judge, finding there to be no disagreement on the material facts of the case, sided with the IRS.

The National Security Archive’s 2018 FOIA audit reveals that the IRS isn’t alone in claiming it can’t search emails in response to FOIA. Far too many FOIA shops do not consult with IT personnel to see if it is possible to search email before denying a request, only conceding to do so once confronted with an appeal.

McCabe Lawyer Argues DOJ Withholding Documents Makes It Impossible for McCabe to Defend Himself

Attorneys for fired FBI deputy director Andrew McCabe are filing a FOIA lawsuit, arguing that the Justice Department is withholding documents necessary for “defending him in connection with the misconduct allegation that led to his dismissal in March.” The suit specifically seeks manuals and policies used by the DOJ, the Inspector General’s office, and the FBI in carrying out both investigations and employee discipline. “McCabe’s attorney’s suit says that most or all of the policies at issue should be publicly available online or in agency reading rooms open to the public, but Justice officials have rebuffed requests for the documents.”

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