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Is the CIA Bypassing Senate Judiciary with New (B)(3) FOIA Exemption? FRINFORMSUM 6/20/2019

June 20, 2019

ProPublica’s growing (b)(3) list.

Proposed CIA Exemption Will Make It Harder for Historians to get Agency Information  

A provision in the pending intelligence authorization bill would allow the CIA to indefinitely withhold information on “the identities of all undercover intelligence officers, and United States citizens whose relationship to the United States is classified, regardless of the location of the individuals’ government service or time since separation of government service.” (Current law prohibits the disclosure of the identity of intelligence officers who are currently serving abroad or who have done so within the past 5 years.)

Senator Ron Wyden (D. – Ore.) said he was not yet convinced the provision was necessary and that he was “concerned that it will be employed to avoid accountability.” The Senator went on to note, “The CIA’s request that the Committee include this provision, which invoked ‘incidents related to past Agency programs, such as the RDI [Rendition, Detention and Interrogation] investigation,’ underscores my concerns.”

Steve Aftergood highlighted the news on his Secrecy News blog, saying “The expanded definition, if enacted, would likely imply increased withholding of historical and other intelligence records under the Freedom of Information Act.”

My colleague and National Security Archive FOIA director, Nate Jones, was quick to point out that this is a troubling development because, for starters, the CIA already has several (b)(3) exemptions, including an Operational Files exemption that allows the agency to refuse to even search and review files it deems “operational” – a broad term that the agency also applies to histories. Jones also notes this provision, which would have a likely detrimental effect on FOIA requesters, was not vetted by the Senate Judiciary Committee, which has oversight over the FOIA. Jones says, “this language continues a trend of agencies not following the requirement that new (b)(3) exemptions ‘specifically cite’ to the FOIA to help people identify potential new exemptions without them being snuck into law.”

(B)(3) is 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 closer to 250 – including one about watermelon production data.

Pro Publica has a list of all the (b)(3) exemptions here.

Is the Interior Department Abusing “Awareness Review”?

A recent RollCall article on the Interior Department’s FOIA process paints a picture of a department that allows political appointees to review records to be released under FOIA – and the discretion to say which documents should or shouldn’t be released. The article, itself based on FOIA-released records, cites a change to the department’s FOIA policy that was formalized in May 2018 as justification for the new process. While awareness (or sensitivity) reviews are relatively common, they have typically been used to give officials a heads-up that a release was coming and did not allow political appointees a say in the release (although there have been some notable exceptions). As Cause of Action notes in an excellent collection of resources on the issue, “Sensitivity review has become an entrenched agency practice regardless of which party or president is in power… At its worst, sensitive review leads to intentionally inadequate searches, politicized document review, improper record redaction, and incomplete disclosure.”

There’s nothing in the FOIA statute that sanctions this kind of “awareness review”, particularly if that review interferes with the timely release of a FOIA-requested document. FOIA establishes a presumption of openness for all records and only says an agency shall withhold information if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection (b); or (II) disclosure is prohibited by law.” In other words – FOIA is not PR for political appointees.

FAA Records Raise Questions about Trump’s U.N. Nominee

Records released by the Federal Aviation Administration show that the U.S. ambassador to Canada and President Trump’s nominee to the U.N., Kelly Craft, “made 128 flights between the United States and Canada during a 15-month span of her tenure in Ottawa, the equivalent of a round trip once a week.” The State Department has maintained that many of the trips – which she took on a private jet – were related to the new North American trade deal, but records show “some of trips correspond with dates of events Craft attended in her home state of Kentucky — such as the Kentucky Derby and a media interview at a University of Kentucky basketball facility named for her husband, Joe Craft, a coal billionaire.” The State Department’s Foreign Affairs manual mandates that ambassadors spend no more than 26 work days a year away from their post without special approval, and neither the U.S. embassy in Ottawa or the State Department have released requested records on how many days she was present in the Canadian capital.

Outgoing Alabama Sheriffs Have a Habit of Destroying Official Records

Investigative reporting by ProPublica and using public records requests illuminates some of the retaliatory tactics outgoing Alabama sheriffs take after losing an election. According to records and interviews, these include destroying public records and property – like drilling holes through government-issued smart phones, removing “reams of records”, taking hard drives from office computers – and pocketing official funds. In one egregious example, “Etowah County Sheriff Todd Entrekin pocketed more than $750,000 worth of funds initially allocated to purchase food for jail inmates between 2015 and 2017, and purchased a $740,000 beach house. Sheriff’s office financial documents recently obtained by ProPublica and via public record request show that in the six months after his June electoral loss, Entrekin personally received an additional $269,184 worth of checks from sheriff’s office accounts. The records show that the money was initially allocated to feed federal immigration detainees and state and municipal inmates housed in the county jail.”

TBT Pick: U.S., Britain Developed Plans to Disable or Destroy Middle Eastern Oil Facilities from Late 1940s to Early 1960s in Event of a Soviet Invasion

This week’s #TBT pick comes from our Iran Project and is a 2016 posting on recently declassified British documents that detailed the CIA’s role in a top-secret plan to ravage the Middle East oil industry. According to guest editor Steve Everly, “The intelligence agency’s oversight included inserting undercover operatives into oil-company jobs to spy on some of the companies. The CIA created – with an American oil company’s assistance – an ambitious denial plan for Saudi Arabia and exported similar plans to Kuwait, Bahrain and Qatar where Britain was the governing authority…British documents also reveal discussions about using nuclear weapons in Iran and Iraq.  State-controlled refineries emerged in both countries and were not covered by existing denial plans which depended on cooperating oil companies. British military officials believed nuclear bombs were an option to destroy these facilities until a plan using ground demolitions with conventional explosives was possible.”

Read the entire piece here.

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