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Judge Tells DHS that FOIA isn’t Battleship, Long-Vacant PCLOB Positions Filled, and More: FRINFORMSUM 10/25/2018

October 25, 2018

Judge Tells DHS that FOIA isn’t Battleship

U.S. District Judge Christopher Cooper sided with the Government Accountability Project in its FOIA lawsuit against the Department of Homeland Security, chiding DHS for responding to GAP’s FOIA request as if FOIA processing was done according to the “rules of Battleship.” GAP’s FOIA initially sought DHS records concerning “ideological tests” and “searches of cellphones” at border crossings, which prompted DHS to look for records only containing those verbatim search terms, and finding zero responsive documents as a result. Cooper was not impressed with DHS’ tactic of looking for only direct hits to find responsive documents, ruling that, “Because FOIA requests do not operate like a game of Battleship—and for other 2 more technical reasons that follow—the Court agrees and will order the agency to conduct its search anew.” TechDirt’s Tim Cushing highlights a few of Cooper’s choice quotes, noting among other things that, “[T]hough a requester must reasonably describe the records sought, an agency also has a duty to construe a FOIA request liberally.” Nation Magazine, 71 F.3d at 890. And ultimately, it is the agency’s burden to show ‘beyond material doubt that its search was reasonably calculated to uncover all relevant documents.’”

The memorandum opinion can be read here. The government’s counsel in this case is Jessie K. Lie, United States Attorney, Daniel F. Van Horn, Civil Chief, and Jeremy S. Simon, the Assistant United States Attorney – Civil Division.

PCLOB, Operating Without Enough Members for A Quorum for 18 Months, Gets New Members

The Privacy and Civil Liberties Oversight Board, an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties, will finally get new members. The Senate recently voted to approve three nominations to the Board: Adam Klein, who will serve as chair, and Edward Felten and Jane Nitze, who will join the Board’s only current member, Elisebeth Collins. Travis LeBlanc and Aditya Bamzai, nominated by President Trump in August, are still awaiting approval.

The additions are significant. PCLOB has been unable to fulfill its mandate due to lack of staffing since early 2017. It is supposed to be staffed by one full-time chair and four part-time members but, for more than a year and a half, only one of the board’s part-time seats was filled. The understaffing was revealed thanks to a FOIA request by the Intercept, which noted that the board was therefore unable to “submit to Congress either its semi-annual reports, which detail the conclusions of its investigations, or its plans for declassifying information it has uncovered. The board can’t hold public meetings, which have offered the chance for public input in the past, or give formal recommendations to the intelligence community.”

PCLOB was not staffed at full-force by the end of the Obama administration, either. The Board’s last chair was David Medine, who retired two years early in 2016 for a position in the private sector. His retirement came after The Washington Post’s Ellen Nakashima reported that Republicans on the House Intelligence Committee advanced a provision to the 2016 intelligence authorization bill that would block PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by Medine arguing that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

District of Columbia Files FOIA Suit Against ICE

The Attorney General for the District of Columbia has filed a FOIA lawsuit against Immigration and Customs Enforcement (ICE) for failing to properly respond to requests for information about ICE’s actions in the District. Local media reports, “The lawsuit alleges ICE did not properly respond to AG Racine’s requests demanding information about ICE raids in predominantly Latino communities in the District this summer. The requests asked ICE to identify the individuals who were detained, give reasons for the detentions, and explain the agency’s immigration enforcement policies.” The complaint can be found here. Getting Special Treatment?

Does get preferential access to archival records? A recent Buzzfeed News article based on a FOI lawsuit brought by the nonprofit group Reclaim the Records alleges that the answer is yes – and that it happens not irregularly. Buzzfeed details an open records lawsuit brought by Reclaim the Records against the New York Department of Health, which alleges that while the department received a FOIA request for a death index covering the years 1880 – 1952 from both Reclaim the Records and at the same time, the department processed Ancestry’s response first. The index in question was contained on microfiche and the department initially told Brooke Schreier Ganz, founder of Reclaim the Records, that the rolls needed to be scanned and digitized and processing the request would cost roughly $152,000. Several months after the request was filed, however, Ganz was informed that the scanning had already been done by Ancestry and there was no need to pay fees for the records.

Ancestry told Buzzfeed that the organization is “often asked to support government entities with records collection. In 2017, the New York Department of Health requested that Ancestry create digital images of the NY State death indexes from fiche. Ancestry created and provided a digitized copy of the fiche to the NYDOH at the company’s own expense.” Other state and local agencies, like the Wisconsin Historical Society and the Willamette Valley Genealogical Society, reported having similar arrangements with the company – but one that allowed Ancestry exclusive access to the records for several years.

Reclaim the Records is now suing for documents “to see all communications — emails, vendor contracts, meeting minutes — between Department of Health employees and Ancestry to find out how and why Ancestry’s FOIL was seemingly given preferential treatment. The agency rejected it.”

#TBT Pick- Mexico Mass Graves Raise “Alarming Questions” about Government “Complicity” in September 2014 Cartel Killings

This week’s #TBT pick is a 2015 posting by Archive analyst Michael Evans regarding the “level of government complicity” in Mexican cartel killings. It highlights 14 documents declassified thanks to National Security Archive FOIA requests that shed light on how the U.S. has perceived and responded to allegations of serious human rights abuses committed by U.S.-funded security forces in Mexico. The documents include an October 2014 U.S. Northern Command summary of two major human rights cases of concern that month. The first case was related to the alleged military involvement in the Tlatlaya killings, in which four individuals had been taken into civilian custody (three soldiers for murder charges and one lieutenant for cover up charges) and an additional four soldiers were in military custody for violations of the military justice code. The other issue was police involvement in the disappearance of 43 students from Ayotzinapa kidnapped in Guerrero.

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