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Trump and Putin’s G20 Meeting Puts Spotlight on the PRA, Senators Hone in on Bad EPA FOIA Regs, and More: FRINFORMSUM 6/27/2019

June 27, 2019

Trump and Putin’s G20 Meeting Puts Spotlight on the PRA

President Trump will be meeting with Russian President Vladimir Putin this Friday at the G20 meetings in Osaka, Japan, and the pressure is on the president not to destroy or tamper with the notes of the meeting, which must be preserved under either the Presidential Records Act or the Federal Records Act. The Trump administration’s refusal to comply with the House Oversight Committee’s requests “for answers about whether Trump destroyed or in any way altered the interpreter notes” from previous meetings with Putin prompted Committee Chairman Elijah Cummings to say: “The Presidential Records Act is at the core of the Oversight Committee’s legislative and oversight jurisdiction, and I had hoped that the White House would cooperate voluntarily with this inquiry. Instead, the White House has disregarded these legitimate congressional inquiries and dissembled about basic facts. These actions do not serve the interests of the American people, and they obstruct and frustrate the Committee’s review.”

In May the Archive joined Citizens for Responsibility and Ethics in Washington (CREW) and the Society for Historians of American Foreign Relations (SHAFR) in filing a Presidential Records Act suit to compel the White House to create and preserve records of the President’s meetings with foreign leaders. The Archive has obtained through the Freedom of Information Act and published thousands of “memoranda of conversation” of heads of state meetings dating back to President Eisenhower, including President Clinton’s 1999 telephone call with Russian President Boris Yeltsin in which Yeltsin announced his successor would be Vladimir Putin.

EPA Wants to Push Through Bad New FOIA Regulations without Public Comment

The Environmental Protection Agency wants to publish new FOIA regulations in the Federal Register – without public comment – under which rules “the administrator and other officials would be allowed to review all materials that fit a FOIA request criteria, known as responsive documents, and then decide ‘whether to release or withhold a record or a portion of a record on the basis of responsiveness or under one or more exemptions under the FOIA, and to issue ‘no records’ responses.” As it stands, the new regulations, which appear to expand the circle of non-FOIA officials who can make final determinations on FOIA requests and allows the agency to functionally ignore any requests sent to regional offices, would go into effect 30 days after the publication in the Federal Register.

Long-time FOIA champion Senator Chuck Grassley wasn’t having it, and tweeted, “Americans deserve 2kno what their govt is up to Freedom of Information Act designed to promote transparency when govt lacks openness but recent SCOTUS ruling+EPA &Interior regs undermine FOIA I will write legislation 2fix TRANSPARENCY BRINGS ACCOUNTABILITY.” Senator Patrick Leahy added, “Congress won’t sit idly by while @EPA further guts FOIA w. an offensive rule allowing politicals to reject #FOIA requests w/o explanation. @EPAAWheeler: a friendly reminder that #Appropriations has oversight responsibilities. We’ll be chatting about this.”

SCOTUS Ruling Broadens Exemption 4

The Supreme Court has broadened FOIA’s exemption 4, which protects privileged or confidential trade secrets and commercial or financial information, in a 6-3 decision in the case of Food Marketing Institute v. Argus Leader Media.  The case, which was the first the justices heard “to address the meaning of a Freedom of Information Act exemption used to decide when information businesses give the government is too sensitive to release,” concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP).

A possible silver lining is that the case was filed before the FOIA Improvement Act of 2016, which added a foreseeable harm standard that raised the bar for withholding information. MuckRock suggested during the oral arguments in April that, if the justices side with the plaintiff, as they did, that more litigators in the future may turn to enforcing the foreseeable harm standard.

Justice Breyer argued in his dissent, “I fear the majority’s reading will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”

Senator Chuck Grassley criticized the ruling (and the new EPA FOIA regulations) on the Senate floor, saying “I’m working on legislation to address these developments and to promote access to government records.”

Vigilance Needed to Keep CIA “Covert Agent” Expansion out of House Intel Authorization Act  

Open The Government and the Project on Government Oversight have an excellent write-up on the provision in the pending Senate intelligence authorization bill that 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.) Watchdogs will need to be vigilant to ensure the provision isn’t snuck into the House bill in conference.

ICE Detainee Records Update

The National Archives and Records Administration recently announced that Immigration and Customs Enforcement’s controversial proposed records schedule, which would have allowed the agency to designate as temporary (and then destroy) a wide array of sensitive immigrant detainee information, is now back on the Federal Register and the public has an additional 45 days to submit comments.

ICE’s records retention schedule, which all agencies must submit to NARA for approval, sought to destroy records on sexual abuse claims filed by detainees while at ICE facilities and investigative records on detainee deaths. NARA received thousands of comments, as well as letters signed by members of both the Senate and the House, opposing the plan. As a result, Archivist of the United States, David Ferriero, did not approve the records schedule and said in September 2018, “I will not approve the pending ICE schedule until all comments are adjudicated and resolved to my satisfaction.”

NARA notes on its blog that “Because of significant public interest in this schedule, NARA is also posting copies of the revised proposed schedule and the appraisal report on Regulations.gov with the notice from the Federal Register. The appraisal report is derived from NARA’s on-site reviews and discussions with ICE officials about agency business processes. Like all agency schedules, this one must be approved by the Archivist of the United States, following completion of the public notice and comment period, before it takes effect.”

FOIA Lawsuit shows repeated NSA “Over-collection”

An ACLU FOIA lawsuit has won the release of documents concerning the National Security Agency’s phone records surveillance program. The documents show that the program “has been marred by more compliance problems than the government has publicly acknowledged.” There were two instances of “over-collection” last year alone, where the agency was forced to purge “millions of Americans’ phone records after learning that some of the data was collected in error.”

The National Security Archive’s Cyber Vault recently published a primer on the phone surveillance program’s legislative origins. While the program is set to expire in December of this year, the Wall Street Journal reported in May that the agency has already formally recommended terminating the program. As the Cyber Vault notes, “The program has also been criticized for its lack of transparency, including most infamously Director of National Intelligence James Clapper’s later-recanted statement in Congressional testimony before Senator Ron Wyden that the NSA did not collect any type of data on Americans. Beyond these criticisms, legal and logistical hurdles in recent years have reportedly encumbered the program. ‘The candle is not worth the flame,’ a senior intelligence official told the Journal.”

OIP FOIA Guide Update

The Justice Department recently updated its FOIA guide (thanks to Allan Blutstein for highlighting this on Twitter). The updated sections include the sections on Proactive Disclosures, Exemptions 2, 7, 7(B), 7(D), 7(E), 7(F), 8, and Exclusions. The exclusions come from the 1986 FOIA amendments and concern “three categories of particularly sensitive law enforcement information;” in the section on FBI records, OIP sanctions other agencies adopting the exclusion on “a derivative basis.” Read all of the updates here.

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