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Forecast for Sunshine Week: Proposed Interior Dept FOIA Rules Show Agencies Still Eager to Weaken FOIA – and Congress Eager to Prevent it: FRINFORMSUM 3/7/2019

March 7, 2019
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Congress Strikes Back at Interior Department’s Bad FOIA Regs

Representative Elijah Cummings, D-Md, and Senators Chuck Grassley, R-Iowa, Patrick Leahy, D-Vt., and John Cornyn, R-Texas, recently sent a stern letter to the Interior Department reprimanding the agency for its efforts to weaken its FOIA regulations and urging it to reconsider the rule change.

The proposed rule change – which garnered more than 65,000 comments – include allowing the DOI to preemptively reject what it defines as “unreasonably burdensome” requests, the possibility of imposing a monthly limit to the number of either pages or requests from a single requester the agency will process, and a host of other changes that may make it more difficult to obtain fee waivers and expedited processing.

The bipartisan group of lawmakers, all seasoned FOIA champions, told the Interior Department, “We write to express significant concern with the rule recently proposed by the Department of the Interior (DOI) concerning its Freedom of Information Act (FOIA) procedures. The proposed rule appears to restrict public access to DOI’s records and delay the processing of FOIA requests in violation of the letter and spirit of FOIA. The American people have the right to access information from DOI, and the proposed rule needlessly encroaches on that right.”

The reminder that Congress is still eager to conduct oversight of FOIA comes just in time for Sunshine Week, the annual, week-long celebration of access to information. Some notable events coming up in the D.C. area include:

Archive’s 2019 Government-Wide FOIA Audit Coming Soon

The National Security Archive’s 18th Freedom of Information Act Audit is coming soon – with disappointing results of a government-wide survey intended to see how much progress agencies have made closing their oldest requests. A 2011 Archive Audit found eight federal agencies have FOIA requests a decade old – and the results now are no less concerning.

An earlier series of Archive audits on agencies’ outdated FOIA regulations spurred Congress to mandate that agencies update their regulations within 180 days of passing the FOIA Improvement Act of 2016. (Our 2017 Audit showed that three out of five agencies didn’t update their FOIA rules in spite of Congress’ order to do so.)

FEMA Buyouts More Frequent in White Communities

A FOIA investigation by NPR shows that white communities are more likely to receive federal buyouts from the Federal Emergency Management Agency after a disaster than minority neighborhoods. NPR obtained a database of more than 40,000 FEMA buyouts from 1989 through 2017 that show “most of the buyouts in the FEMA database happened in neighborhoods that were more than 85 percent white and non-Hispanic, even though disasters affect all kinds of communities. For context, the U.S. is 62 percent white and non-Hispanic.”

Understanding the CIA: How Covert (and Overt) Operations Were Proposed and Approved during the Cold War

This week the National Security Archive published a collection of documents obtained through FOIA and archival research that helps illuminate the workings of the senior interagency group within the US government that approved covert CIA operations during the Cold War. The selection is a tiny fragment of an extensive new compilation, CIA Covert Operations III: From Kennedy to Nixon, 1961-1974, published recently as part of the Digital National Security Archive (DNSA) and shows, among other things:

  • CIA Director Allen W. Dulles made a bid in June 1961 for this “Special Group” to have an autonomous ability to approve covert operations (Document 1).
  • In early 1962 the CIA’s top lawyer relied upon presidents’ Article 2 powers under the Constitution, and on the notion Congress approved by appropriation, to justify covert operations. He warned that no statute actually authorized covert operations (Document 4).
  • President Kennedy’s brother, Robert F. Kennedy, in March 1962 brought up personal characteristics and known acquaintances of Fidel Castro as things which could be exploited in efforts to neutralize the Cuban leader (Document 6).
  • Actions of the CIA’s own Cuban exile allies in March 1963 caused the high command to reconsider its alliance with them against Castro

Cyber Brief: Data Policy

This week’s Cyber Brief focuses on a collection of documents related to data privacy and collection. The documents include a complaint filed in the Federal Trade Commission’s 2012 case against Facebook and a recent NATO report highlighting how “inadequate data privacy can allow for malicious actors to track military forces and influence the actions of soldiers.”

TBT Pick: The Scooter Libby File

This week’s TBT pick comes from 2007 and presents the declassified documents introduced as evidence during the trial of Vice President Cheney’s former chief of staff, Lewis “Scooter” Libby. Archive director Tom Blanton discussed the documents with NPR’s Morning Edition, annotating a series of trial exhibits including several in Mr. Cheney’s own handwriting, ranging from his scribbles on a New York Times op-ed piece critical of the administration, to his tasking of the White House press operation to defend Libby against charges of leaking classified information.

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