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GAO to Review FOIA Compliance Thanks to Bipartisan Congressional Request, and More: FRINFORMSUM 4/4/2019

April 4, 2019

Bicameral, Bipartisan Letter Seeks GAO Review of FOIA Compliance  

Representatives Elijah Cummings and Jim Jordan were joined by Senators Dianne Feinstein, Patrick Leahy, Chuck Grassley, and John Cornyn in sending a letter to the Comptroller General at the Government Accountability Office requesting the GAO “conduct a comprehensive review of agency compliance with the Freedom of Information Act.” The letter notes that “some agencies are not fully implementing the 2016 improvements and continue to burden requesters with unlawful delays and denials,” and cites a 2018 GAO report showing that 18 agencies have “implemented only half of the FOIA requirements” the report reviewed for.

In their request for a comprehensive compliance review, the House and Senate leaders ask the GAO examine, among other things, how (if) agencies apply the foreseeable harm standard, and agencies’ use of FOIA’s Exemption 3, an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has more than 200 – including one about watermelon production data. Statutory exemptions give the DIA, NSA, DOD components, and others far more leeway to hide information than other agencies.

The GAO request comes a month after Representative Cummings and Senators Grassley, Leahy, and Cornyn 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.

Lawsuit Targets Prepublication Review System

The Knight First Amendment Institute at Columbia University and the ACLU are challenging the prepublication review system in federal court. The unique suit targets the entire system – which requires former intelligence and military officials to submit any fiction or nonfiction writing that relates to their government work to government censors for review to ensure no government secrets are disclosed – rather than a specific piece of writing. The plaintiffs argue that the system, which was initially limited to a select group of CIA employees but is now a routine part of obtaining a security clearance, is “dysfunctional,” ambiguous, and restricts free speech and due-process rights.

A FOIA request to the CIA underscores one of the system’s problems: its growing backlog. The request won documents showing that “the agency went from reviewing about 1,000 pages a year in the early 1970s to about 150,000 in 2014.” The insight into the system is rare. Just Security has argued that the major hurdle in fixing the system is lack of information on how it works, making it difficult to suggest fixes for “egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government.”

In 2017 Congress mandated the Office of the Director of National Intelligence come up with a new system to streamline the prepublication review system to make it more uniform across the government and more timely, but no new policy has yet been announced.

Arlington County Agrees to Give Amazon Advance Notice of FOIA Requests and Requesters Personal Information

Arlington County and the state of Virginia both plan to give Amazon – which will be opening one of its HQ2 locations in the Northern Virginia suburb – notice when someone files a FOIA request concerning the company. The FOIA heads-up is part of “a $23 million incentive package the County Board unanimously approved last month to lure the company and its promise of at least 25,000 jobs to the county.” The deal gives Amazon at least a two-business day warning and potentially gives the company time to file a reverse-FOIA lawsuit to prevent the information’s disclosure. The county also doesn’t plan to redact FOIA requesters personal information before forwarding the request to Amazon.

Megan Rhyne of the Virginia Coalition for Open Government says the agreement with Amazon is different than deals the county has made with other large companies, like Nestle. Rhyne says, “the language specifying the warning window (48 hours) and requiring Arlington to only release only the ‘mandatory’ records is new,” further noting that “By doing something different usually there is an intent to do something different.”

Declassified U2 Photos Help Archaeologists

Declassified images from U2 spy planes are helping archaeologists “locate and study sites of historical interest that have since been obscured or destroyed” – like images of Aleppo from 1959 or Mosul from 1958. Steve Aftergood recently reported on the work, noting it “extends previous efforts to apply CORONA spy satellite imagery, declassified in the 1990s, to geographical, environmental and historical research. But the U2 imagery is older and often of higher resolution, providing an even further look back.”

Cyber Brief: Foundations of the Internet: TCP/IP Research by The Department of Defense

This week’s Cyber Brief focuses on the foundations of the internet – Cold War-era research and development performed by the Defense Advanced Research Projects Agency and researchers associated with the Department of Defense’s ARPANET. The six highlighted documents come from the Defense Technical Information Center and provide a glimpse into the research that made the internet possible.

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