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Army Charges $300K for Water Test Records as Senate Judiciary asks DOJ: Why the “Continued Culture of Reflexive Secrecy” Around FOIA? FRINFORMSUM 3/21/2019

March 21, 2019

Army Charges $300K for Water Test Results

The Army is trying to charge a FOIA requester $300,000 to release the results of water tests at military installations for a dangerous contaminant that is linked to cancers and other illnesses. The news of the outrageous fee comes after deputy assistant Defense secretary Maureen Sullivan testified before the House that the DOD recently identified 401 military sites where the contaminants were used.

The FOIA request was filed by the Environmental Working Group and sought records of testing done at 154 specific installations. The Army justified the fee by saying the request was too broad and would take 6,400 hours of work to complete, even though “three Navy and Marine offices that the group also asked for the results of the water tests waived the processing fees.”

Senator Patrick Leahy, who in 2012 released “more than 8,000 Department of Defense documents relating to the historic drinking water contamination that occurred over several decades at Camp Lejeune Marine Corps Base,” blasted the Army’s response, calling it absurd and the fee “offensive.”

The Army isn’t alone in engaging in “fee bullying” to scare off requesters (and many agencies still charge search – and sometimes review and duplication fees – after missing their response deadline, even though this is prohibited by the 2016 FOIA Improvement Act). Here are just a few other egregious examples:

“A Continued Culture of Reflexive Secrecy”

A bipartisan group of senators wrote a scathing letter to the Justice Department’s director of the Office of Information Policy, Melanie Pustay, “to express concern about recent trends in FOIA compliance and reports indicating a continued culture of reflexive secrecy across the government.” Senators Chuck Grassley, Patrick Leahy, John Cornyn, and Dianne Feinstein cite the National Security Archive’s most recent audit, which shows some agencies have FOIA requests a quarter-of-a-century old and unabated backlogs, as evidence of this ongoing trend. Interestingly, the letter also eschews OIP’s misleading statistic of a 92.5% FOIA release rate, and notes that in reality, according to an unbiased reading of the DOJ’s own statistics, “requesters received censored files or nothing at all in 78% of requests, a record over the past decade.”

The senators ask Pustay to respond in writing by April 17 to a series of questions, including what agencies are “not linked to FOIA.gov” and what steps OIP is taking to reduce delays caused by inter-agency consultations and referrals – otherwise known as the “referral black hole.”

The letter comes on the heels of a House Committee on Oversight and Reform Sunshine Week hearing which began with Chairman Elijah Cummings stating, “DOJ needs to do a much, much better job because we are seeing far too much information being delayed and even withheld.”

FOIA Advisory Committee Meeting: 508 and Proactive Posting Delays

A recent study using data from 2008 through 2016 found that, on average across the government, there are 188 FOIA requests per every FOIA officer. The study, which was published in the American Review of Public Administration and discussed at the most recent FOIA Advisory Committee meeting, contributes to a growing body of academic FOIA research, though quantitative studies necessarily weigh agencies’ self-reporting data at the expense of the less-quantifiable trends and attitudes experienced by requesters.

Alina Semo, the director of the FOIA ombuds office, the Office of Government Information Services, also discussed her long-term concerns about the FOIA workforce at the FACA meeting. While the Office of Personnel Management introduced a government information job series for FOIA professionals in 2012, she said, “I worry about the fact that we’re not going to have another wave of FOIA professionals that will come behind the ones that are going to retire in 10, 15, 20 years.”

She also discussed OGIS’ recent annual report to congress, which discusses agencies’ problems posting documents on their websites either proactively or after they’ve been requested three or more times, as required by the 2016 FOIA amendments. Many FOIA offices place at least part of the posting blame on making documents 508 compliant. (508 refers to a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities, and that federal employees with disabilities can access records with the same ease as their counterparts, since 1998). FOIA officers continue to cite 508 compliance as a hurdle in posting documents online, saying that sometimes agency IT shops don’t help FOIA offices make documents 508 compliant, so the burden falls on the FOIA office.

To this end, the OGIS report asks congress to pass legislation to give agencies “sufficient resources” to comply with 508. The ombuds office also “has suggested reaching out to the General Services Administration’s 18F agency to streamline and simplify the process of making documents 508 compliant.”

There are, of course, work-arounds if making every single document 508 compliant (even though documents since 1998 are supposed to be born 508 compliant) is too burdensome. One is to post a 508-compliant index of all records released under FOIA in the FOIA reading room and allow those with disabilities to request individual documents off the index while the agency works behind the scenes to continue making all documents 508 compliant. A 2016 FOIA FACA meeting with a panel of representatives from the Access Board and the General Services Administration reinforced this practice, noting that some agencies like DHS do post non-508 compliant documents but provide a disclaimer and further instructions for individuals with accessibility issues on how to access the documents. And a recommendation from the FACA Committee in April encourages agencies to familiarize themselves with the Rehabilitation Act’s “undue burden provision” that allows agencies to post electronic documents that are not Section 508 compliant if rendering them compliant would “impose an undue burden” on the agency.

“Is the Possibility of a Third World War Real?” 

Don’t miss the Archive’s Nate Jones’ article for the Nuclear Proliferation International History Project, “Is the Possibility of a Third World War Real?” In it, he “presents new evidence drawn from KGB documents and other eastern and western sources to examine Ukrainian and Soviet nuclear history. These new Soviet intelligence documents show the inefficiency of the early Soviet ICBM program; details of the domestic and international intelligence operations of the KGB; descriptions of Soviet decision-making and American manipulation of the KAL 007 civilian aircraft shoot down,” and much more.

TBT Pick – Iraq: The Media War Plan  

This week’s #TBT pick is chosen with the anniversary of the 2003 Iraq invasion in mind, and is a 2007 posting from our Iraq Project director Joyce Battle on the media war plan. It highlights a White Paper and a PowerPoint obtained by the Archive through FOIA that recommended the creation of a “Rapid Reaction Media Team” to serve as a bridge between Iraq’s formerly state-controlled news outlets and an “Iraqi Free Media” network.

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