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Did the CIA Change its Procedure for Reviewing Historical Records? FRINFORMSUM 1/17/2019

January 17, 2019

Concerning News from CIA’s Historical Review Panel Requires Clarification

Dr. Robert Jervis, chair of the CIA’s Historical Review Panel, recently announced in an H-Diplo posting that the panel did not meet in June 2018 as planned, and that members were recently informed “the Panel is being restructured and will not meet again until this has been done. The reasons for this remain unclear to us, and no schedule for resumed meetings has been announced.” Jervis notes that the State Department’s Historical Advisory Committee continues to monitor the agency’s cooperation in producing FRUS volumes, but goes on to make several vague references to possible changes to the way the agency reviews historical documents. The announcement states that, had the panel met for its most recent meeting, it would have discussed, among other items, “the implications of the change in the reviewing of documents in the 25-year program from making redactions to the application of the pass/fail standard to the entire document, the review processes and standards for documents that are 50 years old; the possibilities of closer contact with Freedom of Information Act (FOIA) requesters; the CIA’s role in reviewing documents for the presidential libraries; and the criteria for selecting topics for special releases.”

Clarification is needed for the opaque references to what could be significant policy changes for the historical community.

Up to Congress and the Courts to Enforce the Presidential Records Act

After news broke that President Trump confiscated notes his interpreter took during his 2017 meeting with Vladimir Putin, National Security Archive director Tom Blanton spoke with Public Radio International’s The World program to explain why – in theory – President Trump can’t destroy or hide records at whim. The Presidential Records Act, passed in 1978 because President Nixon wanted to hide Watergate tapes from the public, mandates that the president “can’t destroy records without the permission of the archivist of the United States, and the archivist of the United States is supposed to bring in the attorney general to take action and stop.” Blanton notes that it’s really up to Congress and the courts, saying “Where the big disputes are is how much review the courts can have over what the president does and how much people like us at the National Security Archive can intervene” to protect records at risk of destruction.

Of the interpreter’s notes Blanton draws another Nixon parallel:

Nixon and Kissinger were pretty famous for creating multiple versions of a transcript of a conversation with a foreign official. So, they would make one version that was complete and that would stay only in a White House safe or in Kissinger’s safe. Another would be more of a summary with kind of the cuss words cut out that could be shared with the State Department. Another would be like a one-page gist, and they’d share that with the Defense Department.

And so, for historians who’ve been putting together those conversations, the tapes really help because they showed the full Monty, if you will, and then all these partial versions that we’ve resurrected, you kind of see a consistent pattern of deceit. Trump’s effort to prevent even a transcript or so-called memoranda of conversation from being available at all is beyond the pale.

OPEN Government Data Act Now Law

The OPEN Government Data Act, which mandates that public information be open by default and in a machine-readable format, is now law. President Trump signed the Foundations for Evidence-Based Policy Making Act of 2018, which includes the OPEN Data Act, on January 15. As the Data Coalition notes, the law also creates “standards for making federal government data available to the public” and requires regular oversight by the Government Accountability Office.

Image courtesy of Reveal.

Tech Companies Tried to Hide Abysmal Diversity Stats Behind FOIA’s Exemption 4. Thanks to a FOIA Suit They Can’t Anymore

Silicon Valley titans Palantir Technologies and Oracle both argued for years that their diversity figures were trade secrets and couldn’t be released through the FOIA. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) bought the argument for several years, citing Exemption 4 in denying the FOIA request for the tech companies EEO-1 federally mandated diversity reports (Exemption 4 is intended to protect trade secrets and confidential financial information). Palantir went so far as to tell the Labor Department that revealing their diversity numbers would harm them because it would allow “competitors could identify where Palantir has made significant progress in hiring women and minorities and target recruitment strategies at specific job categories to steal this talent from Palantir.”

Reveal from The Center for Investigative Reporting appealed the Labor Department’s denial and eventually sued – and won – on the grounds that the trade secrets argument was unjustified and that none of the data was confidential. When the reports were released they showed that both Palantir and Oracle huddled towards the bottom rung of diverse workplaces, even by Silicon Valley standards; Palantir for example “had no female executives and only one woman, who was white, among its managers.”

SNAP case goes to Supreme Court with Broad Implications for Exemption 4

MuckRock’s Michael Morisy has a good rundown of the potential implications of the upcoming Supreme Court fight concerning public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP). Investigative reporter for the Argus Leader, Jonathan Ellis – who has an excellent write-up of the case here – requested the data for the reimbursements that are part of the food stamps program, a FOIA fight he won in the district court and the appellate court. The Food Marketing Institute has appealed all the way to the Supreme Court, which will hear the case in April. In the interim, the Food Marketing Institute tried to sneak a B(3) exemption into the most recent Farm Bill that would have kept the information confidential; the exemption was part of the House bill but not the Senate’s and was eventually dropped.

As Morisy notes, “If the decisions in favor of release are overturned, lack of access to this data will continue to hold back public spending accountability and nutrition research around the country — and provide corporations a powerful tool to keep public data proprietary in other cases.” Kel McClanahan, Esq., executive director of National Security Counselors adds, “A ruling for the requester would mean nothing more than a continuation of the status quo, where business information can only be withheld under Exemption (b)(4) upon a showing of competitive harm. But a ruling against the requester would turn Exemption (b)(4) into some sort of super-exemption, where the mere fact that business information had not previously been made public would suffice to withhold it.”

FOIA during a Government Shutdown

Curious about the status of your FOIA request during the government shutdown? FOIA Wiki has a good entry detailing the statements put out during the 2013 shutdown by both the Office of Government Information Services and the Justice Department’s Office of Information Policy. OGIS stated during the 2013 shutdown that “the Department of Justice’s Handbook for Agency Annual Freedom of Information Act Reports says that ‘even where an entire agency FOIA office is closed due to weather conditions, furloughed employees, or other circumstances outside of these specified in the statute, the agency must count those days for reporting purposes.’” OIP stated of the same shutdown, “agencies should count as part of their response times for FOIA requests and appeals the eleven days when the government was closed, which excludes the Saturdays, Sundays, and the one legal public holiday that occurred during the shutdown.”

Requesters who choose to submit FOIAs to those agencies closed during the shutdown should be conscientious about following-up to ensure that their request was received and a tracking number was issued.

Comments on Proposed DOI FOIA Changes Not Posted During Shutdown

The public has submitted at least 1,219 comments in response to the Interior Department’ proposed FOIA regulation changes that would allow the agency to preemptively reject what it defines as “unreasonably burdensome” requests, and the possibility of imposing a monthly limit to the number of either pages or requests from a single requester the agency will process, among other concerning changes. But because of the government shutdown, none of the comments have been posted “for public consumption. The result is a kind of regulatory shadow play.”

The comment period is scheduled to end on January 28, but a coalition of more than 150 organizations requested the period be extended at least 120 days.

Taiwan’s Bomb

From the late 1960s until the late 1980s, U.S. government officials worried that Taiwanese leaders might make a “fundamental decision” to develop nuclear weapons. Documents published recently for the first time by the National Security Archive illustrate Washington’s efforts to keep tabs on military and scientific research and to intervene when they believed that Taiwan’s nuclear R&D had gone too far. The posting builds on and adds documentary detail to an important recent publication by the Institute for Science and International Security (ISIS), David Albright and Andrea Stricker’s Taiwan’s Former Nuclear Weapons Program: Nuclear Weapons on Demand. Their book provides the most comprehensive account to date of the nuclear program, in part by drawing on documents from the National Security Archive.

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