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FBI Wants to Put FOIA Lawsuits on Ice until 2021: FRINFORMSUM 6/28/2018

June 28, 2018

FBI Tries to Put FOIA Lawsuits on Hold

The FBI recently told a government attorney that it is beginning to file “Open America” stays in “all FOIA lawsuits going” forward. This means, according to Jason Leopold, who brought attention to this alarming development, that “even if you sue the FBI, the bureau won’t process it until 2021.”

Courts can grant “Open America” stays when an agency demonstrates that “exceptional circumstances” exist and an agency can show that it “is deluged with a volume of requests for information vastly in excess of that anticipated by Congress [and] when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection.” Justice Department guidance importantly notes that, “The Electronic Freedom of Information Act Amendments of 1996 explicitly redefined the term ‘exceptional circumstances’ to exclude any ‘delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.'”

While the FBI argued the stays were necessary because of the bureau’s immense FOIA backlog, it’s not clear that the Open America stays would coincide with a concerted effort to clear the backlog.

Congress should use the FBI’s suspect position as an opportunity to investigate the extent to which the practice of staying FOIA lawsuits is employed at the Department of Justice and possibly other agencies, and what methods agencies are (or aren’t) taking to address their FOIA backlogs.

Financial Disclosure Form Reveals Potential Conflicts of Interest for new FTC Official

A FOIA request submitted by Public Citizen has won the release of Adam Smith’s financial disclosure form. Smith is the Federal Trade Commission’s new Bureau of Consumer Protection director, and the form raises serious questions about an array of perceived conflicts of interest. The form lists more than four dozen clients Smith worked with during his time at the corporate law firm Covington & Burling, among them were Uber, Equifax, and payday lender Scott Tucker, which was fined $1.3 billion by the FTC. Smith has also represented most of the nation’s large financial firms, including those fined for securities and consumer protection violations.

GAO Report: FOIA – Agencies Are Implementing Requirements but Additional Actions Are Needed

The Government Accountability Office has released a new report on FOIA implementation in response to a 2016 request from Congress to determine agencies’ compliance with the law. GAO selected the 18 agencies surveyed in the report based on size and other factors and assessed their performance against 6 metrics mandated by the FOIA. These metrics include online access to government information, including information about FOIA liaisons in agency communications with requesters, and training FOIA personnel. GAO recommends, in short, that agencies follow all of the FOIA’s requirements.

MuckRock’s Emma Best has a very good breakdown of the findings, as well as helpful commentary on how the official GAO findings square with requesters’ actual experiences, including:

  • The four agencies with the largest FOIA backlogs do not have plans to deal with them;
  • Agencies withheld information under the b(3) exemption by citing more than 230 statutes, but courts, as Ms. Best points out, have only upheld 75 of those statutes. The GAO report includes a chart citing which statutes have been upheld in court and which have not; and
  • The most commonly cited b(3) statute “related to withholding records pertaining to the issuance or refusal of visas to enter the United States. It was used by 4 agencies over 58,000 times.”

Focusing on the Intelligence Community’s FOIA Performance

A new report from OpenTheGovernment focuses on FOIA trends at the NSA, DIA, Army, Navy, CIA, and ODNI as compared to the rest of the federal government. OTG found that processing times for complex FOIA requests at these agencies are nearly three times longer than the government-wide average, and that the NSA and DIA’s processing times are worst of all at nearly 6 times the government-wide average.

Other key findings include:

  • The CIA rejects 4.35% of all FOIA requests – considerably more than other agencies – because of ongoing FOIA litigation;
  • FOIA litigation costs at CIA are more than at the NSA, DIA, Army, and Navy combined; and
  • The NSA and CIA fully denied about 40-percent of all FOIA requests on exemption grounds last year.

The OTG data begs a number of important questions, key among them being what is the rationale behind the CIA’s litigation-based denials, and what do the litigations costs reported in the agency’s annual FOIA reports actually cover?

New Digital National Security Archive Document Collection Highlights CIA Covert Operations from 1961-1974

Explore important historical events, like the epic Bay of Pigs disaster, through the lens of little-known or under-explored covert activities in the National Security Archive’s latest digital collection, CIA Covert Operations, Part III – From Kennedy to Nixon. This Digital National Security Archive (DNSA) collection, the most comprehensive of its kind, is the third of five installments concerning the bread and butter of U.S. intelligence operations – covert operations.

The new collection includes first-hand reporting on Che Guevara as he uttered his dying words in Bolivia, assassination attempts on Fidel Castro and Rafael Trujillo, dealings with secret agents and covert support for Kurdish rebels, and the CIA’s search for funds to bribe African dictator Jean-Bedel Bokassa of the Central African Republic.

Cyber Brief: Joint Publication 3-12

This week the Archive’s Cyber Vault highlights the updated Joint Chiefs of Staff Publication 3-12, first published on February 5, 2013. The following changes are prominent in the document:

  • Addition of USCYBERCOM as a combatant command and the creation of the cyber mission force.
  • Command and control for cyberspace operations are given deeper attention.
  • Information is reflected as a joint function.
  • Cyber operation planning is given deeper attention including intelligence and operational analysis support as well as targeting.

The Cyber Vault has a side-by-side view of both versions of the document to help readers compare versions and spot changes.

TBT Pick – U.S. Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick comes from our China Documentation Project and is a 2011 posting celebrating the publication of over 2,000 documents on the U.S. intelligence community’s efforts spying on China. The documents include a U.S. defense intelligence document from 2001 that details Chinese plans for developing radiofrequency weapons (although it stops short of speculating on their possible purpose).  Other records reflect on contemporary issues, like the risks of constructing nuclear power plants – like the Fukushima facility that exploded after the recent tsunami – at questionable sites in Japan.

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