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ISCAP Directed to Help with FRUS Volume Even Though Backlog at All-Time High, and More: FRINFORMSUM 6/21/2018

June 21, 2018

ISCAP Directed to Help with FRUS Volume

The Interagency Security Classification Appeals Panel (ISCAP), which is housed at the U.S. National Archives and charged with – among other things –  deciding on Mandatory Declassification Review appeals, held a forum today to discuss the current MDR landscape. Major takeaways from the meeting include:

  • ISCAP received a record-number of appeals in FY2017 – 577, and decided on 50.
  • ISCAP’s backlog has reached a record high of over 1,000 appeals.
  • The majority of documents ISCAP decided on (58%) were declassified in full.
  • Equity re-reviews continue to be the major factor slowing agency responses.
  • The Archive’s William Burr gave an excellent presentation of the history, success, and shortcomings of the MDR process.
  • 23 agencies have submitted their Declassification Guides and ISCAP is working with agencies to revise their guides before approval.
  • A May 23, 2018 memo from the National Security Advisor to ISCAP has triggered 32 C.F.R. Part 2003.15, directing ISCAP to assist with the declassification of documents for the State Department Foreign Relations of the United States volume on national security policy. This begs the question of why the State Department can’t perform the task itself and if, given ISCAP’s growing backlog, this is an effective use of resources.

DHS Not Investigating Abuse Claims

A FOIA request filed by Motherboard won the release of documents showing that in 2017 “the US Department of Homeland Security did not investigate hundreds of civil rights complaints about alleged detainee, prisoner, or suspect abuse filed to the agency’s oversight body.” The documents do not differentiate between the numerous DHS components, which include Immigration and Customs Enforcement and Customs and Border Protection. The overwhelming majority of cases cited in the DHS Inspector General report are marked “closed not converted,” which, as explained in an ACLU lawsuit by the court, means “virtually no investigations into the complaints took place, or at least were completed.”

Troubling CT Law Targets “Vexatious” Requesters

Connecticut recently passed a problematic law that would allow an agency to refuse to respond to a FOIA request or appeal if the state Freedom of Information Commission determines the request or requester is “vexatious.” The law allows the state agency or municipality to ignore the requester for a year. State Senator Toni Boucher (R) said the law was necessary “because there have been a number of individuals who have filed voluminous FOIA requests with the general assembly, public agencies, and municipalities.” The weak explanation ignores the myriad of ways the legislation could be abused to deny public access to official records.

The bill, which passed unanimously, was supported by municipal organizations like the Police Officers Association of Connecticut, as well as the Connecticut Society of Professional Journalists.

Thanks to Mike Morisy for drawing attention to this law.

Agency Records Stored at NARA Federal Records Centers are Still Agencies’ Responsibility

A helpful blog from the U.S. National Archives’ Office of Government Information Services (OGIS) reminds agencies that their records stored in any of NARA’s 16 Federal Records Center are still the legal custody of the agency and must be searched by the agency in response to a FOIA request.

The blog highlights the important difference between when a record is “accessioned” to NARA – a process that only happens if the record is determined to have permanent historical value as identified in an agency’s records retention schedule – versus when a document is stored in a NARA facility (which is much more frequently the case). As NARA points out, if an agency receives a FOIA request for records stored at an FRC, “It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.” Many agencies appear not to be aware of this responsibility.

Here is the list of all the Federal Records Centers.

FOIA Confirms DOJ Not Reporting to Congress on State Secrets Usage

A FOIA request shows that the Justice Department had little appetite for following then-Attorney General Eric Holder’s 2009 instructions for the DOJ to regularly provide volunteer reports to Congressional oversight committees concerning the government’s invocation of the state secrets privilege. The first report was produced in 2011, but as Steve Aftergood notes on the Federation of American Scientists’ Secrecy News blog, it was also the last. A FOIA request for any subsequent reports received a “no records” response.

An earlier FOIA request from Aftergood for the Attorney General’s written responses to questions from the House Judiciary Committee following a June 7, 2012, hearing shows that “A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose.” The DOJ did note that the Attorney General had invoked state secrets privilege in six known cases between 2009 and 2013 – including Gen. Petraeus’s use of the privilege while head of CIA in an employee discrimination case, which is not widely considered a state secrets case.

More information and resources on the state secrets privilege can be found here.

Cyber Brief: Federal Ban on Kaspersky Products

This week’s Cyber Brief includes the guidance implemented by the Department of Defense, General Services Administration, and NASA for the ban on Kaspersky products mandated in the 2018 National Defense Authorization Act. The relevant NDAA section is accompanied by a DHS directive to identify and remove Kaspersky products from Federal systems within 90 days, and court documents from a lawsuit in which Kaspersky alleges that the DHS unfairly blocked its software from Federal systems based on unsubstantiated evidence.

TBT Pick – The Taliban File Part III

CIA poster on “Afghanistan’s Key Players,” circa 2001.

This week’s #TBT pick is a 2004 posting showing the State Department reporting that Pakistan provided millions of dollars, arms, and “buses full of adolescent mujahid,” to the Taliban in the 1990s. The posting includes a March 9, 1998 cable on a meeting between the US Deputy Chief of Mission Alan Eastham and a source who appears to be Pakistan Foreign Ministry official Iftikhar Murshed, who for the first time admitted that Pakistan provided arms supplies to the Taliban.

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