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NARA Will Re-Open Public Comment on Controversial ICE Records Schedule, and More: FRINFORMSUM 9/27/2018

September 27, 2018

NARA to Re-Open Public Comment on Controversial ICE Records Schedule

The National Archives and Records Administration (NARA) will re-open a 15-day public comment period for a controversial Immigration and Customs Enforcement records schedule that would have allowed the agency to designate as temporary (and then destroy) a wide array of sensitive immigrant detainee information. The proposed records schedule that ICE (and every agency) must submit to NARA for approval, sought to destroy records on sexual abuse claims filed by detainees while at ICE facilities and investigative records on detainee deaths. NARA received thousands of comments, as well as letters signed by members of both the Senate and the House, opposing the plan; Archivist of the United States David Ferriero said, “I will not approve the pending ICE schedule until all comments are adjudicated and resolved to my satisfaction.”

FOIA Suit Shows ICE is Letting FOIA Office Hobble Along on Life Support

The Civil Rights Education and Enforcement Center is suing ICE for failing to respond to FOIA requests in a timely manner – to say nothing of responding within the 20-day statutory requirement. CREEC filed nine FOIA requests between August and September of last year – all concerning treatment of immigrant detainees – and has yet to receive a response. Long wait times for FOIA requests are the norm, but ICE made it nearly impossible for CREEC to even obtain the status of the requests, and did not provide an estimated timeline for completion. A court filing submitted by ICE sought leniency, citing budget cuts and noting that, as of August 2018, the agency was the defendant in 78 FOIA lawsuits and “has only assigned three ‘litigation processing unit’ employees to turn over documents at the discretion of judges in those cases. And those three employees are also being made to take up other duties.” The declaration is at odds with the agency’s FY 2018 budget, which ballooned by $2 billion in a year and does not include a line item to increase the FOIA office’s funding.

Documents Shed Light on Origin of DHS’s Family Separation Policy

FOIA documents won by Open the Government and the Project on Government Oversight provide, among other things, “evidence that Secretary of Homeland Security Kirstjen Nielsen signed off on a policy of family separation despite her repeated claims denying that there was such a policy.” An April 23 memo provides three options for curbing illegal immigration and argues that family separation is the most effective because, in part, “it is very difficult to complete immigration proceedings and remove adults who are present as part of FMUAs [family units] at the border. In fact, only 10 percent of non-Mexican FMUA apprehended during the Fiscal Year (FY) 2014 surge have been repatriated in the nearly four years since their illegal crossing.” Other documents won in the release detail DHS’s response to court orders demanding a stop to the family separation policy, including a July 11 email from a DHS official directing “employees to deport families as quickly as possible, as a way of clearing out space for new families.”

NYT Sues FCC Over Net Neutrality FOIA Response

The New York Times is suing the Federal Communications Commission over its failure to adequately respond to a FOIA request for records concerning an alleged DDoS attack on the agency’s website during a comment period for a proposed rule that would have rolled back net neutrality. The Times’ FOIA request sought “the IP addresses, timestamps, and comments, among other data, for all public comments regarding the FCC’s proposed rule that were submitted between April 26, 2017 and June 7, 2017.” The FCC denied the request, citing the FOIA exemption designed to protect personal privacy, (b)6), and the exemption intended to prevent the disclosure of law enforcement techniques, (b)(7)(E). The Times’ suit takes the agency to task, arguing that “the FCC has responded to The Times’s attempt to resolve this matter without litigation with protestations that the agency lacked the technical capacity to respond to the request, the invocation of shifting rationales for rejecting the Times’s request, and the misapplication of FOIA’s privacy exemption to duck the agency’s responsibilities under FOIA.”

FOIA Pins Admiral Tapped to Lead SOUTHCOM to “Fat Leonard” Scandal

FOIA requests filed by The Washington Post and corroborated by Pentagon officials tie vice admiral Craig S. Faller to the Navy’s “Fat Leonard” scandal, which has ensnared 60 Navy admirals to date. (Faller is also the senior military official to Defense Secretary Jim Mattis and has been nominated by the White House to head U.S. Southern Command.) The documents show that while Faller was ultimately cleared of wrongdoing, he was investigated after Leonard told officials he gave Faller gifts and “paid for a prostitute to entertain Faller after the Christmas 2004 party in Hong Kong.”

Will SNAP Sales Figures be Hidden Under New (B)(3) Exemption?

Public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP), which “went from a $25 billion program in 2004 to a nearly $80 billion program by 2013,” remains in doubt. Earlier this year in a FOIA lawsuit, the Eight Circuit Court of Appeals ruled that the data – which is maintained by the Department of Agriculture – is public information, “But Supreme Court Justice Neal Gorsuch recently put a hold on the release of data to allow the food industry to appeal to the Supreme Court.”

MuckRock’s Michael Morisy highlighted this May that an amendment to the the House Agricultural Appropriations Bill proposed exempting SNAP information under FOIA’s expansive (b)(3) exemption, and National Newspaper Association President Susan Rowell’s recently urged the Senate Conference Committee working on the Agricultural Appropriations Bill, which is expected to be voted on next week, to omit any such amendment from the final bill. Rowell notes, “FOIA already has eight very strong exemptions to protect legitimate interests against disclosure, but the law is written to protect the public’s right to know. The benefit of the doubt should always be with the public. In this case, there is a strong interest in knowing how SNAP benefits are used. They are funded from an ever-rising taxpayer contribution. There are frequently allegations of fraud in the program, gaps in service from ‘food deserts’ where hungry people cannot find groceries, and price gouging. This is a program crying out for smart journalists like the Argus team to dig in, and educate their readers. Both SNAP users and taxpayers would benefit from these disclosures.”

Yeltsin: “Let Us … Get Rid of the Nuclear Footballs” – “No Need to Drag Around … These Briefcases”

Possibly for the first time in U.S. diplomatic history, the “Nuclear Football” – the nominally secret command-and-control system used to assure presidential control of nuclear use decisions – became a subject of a heads-of-state discussion when Russian President Boris Yeltsin proposed getting “rid” of it during a meeting with U.S. President Bill Clinton in September 1994. According to a recently declassified meeting record published for the first time by the National Security Archive, Clinton discouraged the idea on the grounds that the Football was an important symbol of civilian control of the military. When Yeltsin brought up his proposal at a second meeting in 1997, Deputy Secretary of State Strobe Talbot commented that it was better for presidents “to have these devices with you at all times rather than to have the function assigned to a computer somewhere or to anyone else.”

The U.S. and Climate Change: Washington’s See-Saw on Global Leadership

President George H.W. Bush initially sought a leadership role for the United States on the environment, according to declassified documents recently published by the Archive. Contrary to the popular impression that Republican presidents have always downplayed such concerns, the record shows that some of Bush’s advisers – as under Ronald Reagan – early on recommended severing the “link between economic development and deterioration of the environment,” and demonstrating that “wise, active stewardship over the resources of our planet” was a “responsibility we have to ourselves and as our legacy to future generations.”

The new documentation provides a nuanced picture of some of the continuities that characterized U.S. environmental policy from Reagan to Obama, but there is clear evidence that Reagan and both Bush presidents believed that greenhouse emissions and other problems were real and that even senior aides to George W. Bush sought actions “grounded in science” and designed to encourage renewed cooperation with other countries on restricting emissions.

Cyber Brief: White House and Department of Defense Cyber Strategies

Last week the White House and the Defense Department issued new documents on cyberspace strategy. This week, our Cyber Brief includes the new issuances and presents them with current national security and strategy documents for immediate context as well as past White House and Department of Defense documents tracing the evolution of cyber strategy in the United States Government.

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