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OGIS Issues First Advisory Opinion, a Pattern and Practice Case to Watch, and More: FRINFORMSUM 7/19/2018

July 19, 2018

OGIS Issues First Advisory Opinion

The Office of Government Information Services (OGIS), the federal FOIA Ombuds office, issued its first advisory opinion this week. The substance of the opinion, which addresses agency communications with FOIA requesters, is useful if uncontroversial.

OGIS has had the authority to issue advisory opinions since its founding in 2007, and open government advocates have long urged it to use this potentially powerful tool. An OGIS blog post addresses the wait, noting “While we have had the authority to issue advisory opinions since our creation, prior to the passage of the FOIA Improvement Act, OGIS could only issue advisory opinions for individual disputes if mediation had not resolved the dispute.  For several years OGIS struggled with how to reconcile its authority to issue advisory opinions with its ability to be an impartial party that can facilitate the resolution of disputes between requesters and agencies.”

The National Security Archive is pleased to see that OGIS has begun using its statutory authority, and hopes this opinion is followed by many more that will deal with thornier issues of agencies systemically skirting FOIA requirements.

FOIA Pattern and Practice News

In a FOIA pattern and practice case brought by Judicial Watch that bears watching, the Court of Appeals for the District of Columbia remanded the case back to the District Court after the lower court ruled Judicial Watch “had failed to plead sufficiently egregious facts” in a suit seeking “an injunction that would make the Secret Service respond to future requests in a timely manner rather than make the group file litigation each time requests were made.” As Scott Hodes notes, “Up to this decision, pattern and practice claims in FOIA had to allege either agency misconduct or good faith agency error in interpreting FOIA exemptions.  Neither were alleged here, only the facts that the requester made requests, they were ignored until lawsuits were filed, and then the material was released.  The Court found these unexplained delays were enough to allow an inference of a practice of delay.  This ruling will allow the case to proceed at a lower level, where the Secret Service will now have to explain that its delays are not a pattern or practice unsupported by the FOIA.”

One of Kavanaugh’s Last D.C. Court of Appeals Rulings A Blow to FOIA Requesters

Jefferson Morley has a must-read article in the Intercept on SCOTUS nominee Brett Kavanaugh’s ruling in Morley’s long-running FOIA case, finding that Morley was not entitled attorney’s fees. The government is typically required to pay attorney fees when it loses a FOIA lawsuit, as it did in Morley’s case, in an effort to prevent agencies from capriciously denying records on arguments that wouldn’t stand up in court. But in this instance (the suit for attorney fees itself lasted an eyebrow-raising 8 years) Kavanaugh ruled against Morley, arguing that the FOIA request was for records of only “marginal” interest and that the CIA had acted “reasonably” in its response.

In her dissent, Judge Karen Henderson points out that the very same court had “previously determined that Morley’s request sought information ‘central’ to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies.” Henderson also wrote that Kavanaugh’s opinion “ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.”

Amusing Archival FOIA Finds

War on the Rocks has a fun read on declassified documents from the Cold War that are – perhaps surprisingly – pretty funny (and a little unnerving). Several of the documents come from the National Security Archive’s vaults, including an interview conducted by the Department of Defense contractor BND Corporation with a senior Soviet military officer, Andrian A. Danilevich. In the document Danilevich recounts an early 1970s exercises that attempted to measure the consequences of nuclear first strike:

“During the exercise three launches of ICBMs with dummy warheads were scheduled. Brezhnev was actually provided a button in the exercise and was to ‘push the button’ at the appropriate time. Marshal Grechko was standing next to him and I next to Marshal Grechko. When the time came to push the button, Brezhnev was visibly shaken and pale and his hand trembled and he asked Grechko several times for assurances that the action would not have any real-world consequences. ‘Andrei Antonovich, are you sure this is just an exercise?’”

Recent Releases Shed Light on IC’s Reactions to Trump Tweets, Steele Dossier

BuzzFeed News’s Jason Leopold had a duo of interesting stories this week based on documents recently released in response to FOIA lawsuits.

One release shows that the Office of the Director of National Intelligence “deliberately concealed how the agency came into possession of a dossier prepared by a former British intelligence officer that alleged Russians had been ‘cultivating, supporting and assisting’ Donald Trump.”

The second release shows that Adm. Mike Rogers, former head of the National Security Agency, instructed his staff not to “get sucked in” to an exchange with President Trump after Trump lashed out against the Intelligence Community over Twitter after information was leaked to the New York Times. Rogers wrote, “Everyone needs to do their job and do in our normal professional and forthright manner. Our behavior will be driven by the standards of our profession and not the comments or views of others. No tit for tat pettiness from anyone at the NSA on this.”

FBI Morale Down for Some Reason

An FBI survey released in response to a FOIA lawsuit shows that morale at the bureau has dropped in the wake of James Comey’s ouster, “though satisfaction at the bureau remains high overall.” The FBI morale data had been released regularly since 2013 but was not published this year until researchers filed a FOIA suit. The question that resulted in the sharpest dive in the FBI Climate Survey is “I am inspired by the Director’s vision and leadership.” The data contradicts claims made by President Trump that he fired Comey because employees had lost faith in him (and previous data from FBI climate surveys showing Comey was widely respected at the bureau).

A History of US-Russian Negotiations

Our senior analyst and Russia expert, Svetlana Savranskaya, spoke with KPFA radio’s Letters and Politics about the history of US-Russian negotiations. Listen to the interview here.

Cyber Brief – Cyber Brief: GRU Cyber Operations

This week the Archive’s Cyber Brief is useful context for the indictment of 12 Russian intelligence officers for “engaging in cyber operations that involved the staged release of documents stolen through computer intrusions.” These cyber intrusions have come to be referred to as “Operation Grizzly Steppe.” This week’s brief explores the US Government’s public conceptualization of Russian cyber operations and highlights the two GRU units suspected of being directly involved: Unit 26165 (a/k/a Cozy Bear, APT29) and Unit 74455 (a/k/a Fancy Bear, Pawn Storm,  APT28).

#TBT Pick – Secret U.S. Overture to Iran in 1999 Broke Down Over Terrorism Allegations

This week’s #TBT pick is a 2010 posting highlighting declassified documents showing that a highly confidential US overture to Iran in summer 1999 foundered because the intelligence community and FBI believed members of Iran’s Revolutionary Guards had a role in the infamous Khobar Towers bombing of June 1996, and because US officials overestimated the Iranian president’s ability to manage the sensitive matter of US relations within Iran’s power structure. Get the whole story here.

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