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Judge Cites “Considerable Public Importance” in Khashoggi FOIA Case, Orders State to Process 5,000 Pages a Month: FRINFORMSUM 8/8/2019

August 8, 2019

Judge Orders State to Process 5,000 Pages a Month in Khashoggi Case – 4,358 Pages More than Average Monthly Schedule

Judge Paul Engelmayer for the Southern District Court of New York has ordered the State Department to process 5,000 pages of responsive documents a month in a FOIA lawsuit for records concerning the disappearance of Washington Post journalist and Saudi national, Jamal Khashoggi. The Judge, citing the “considerable public importance” of the request, also ordered the Defense Department to process 2,500 pages of responsive documents by the end of June, and 5,000 pages per month after that.

The opinion is notable considering most court-ordered schedules hover in the range of 300-500 pages a month; indeed, the State Department’s Information Programs and Services Director Eric Stein initially requested the Department only be compelled to produce 300 pages a month. In their respective declarations, both Stein and the Defense Department’s Associate Deputy General Counsel, Mark Herrington, argued that complying with the court order would negatively impact their offices’ ability to respond to other FOIA requests.

The State and Defense declarations provide some interesting insights. Stein’s declaration notes that:

  • The department is under court order to produce documents in more than 50 other cases;
  • Judge Engelmayer’s production schedule is the most “onerous” State has handled (the only comparable case being for Secretary Clinton’s emails);
  • There are “over 100 additional FOIA litigation cases that are in other stages of litigation and that require the same resources (for example, to compile Vaughn indices justifying redactions);”
  • and “In addition to the FOIA requests that are not in litigation, over 50 other FOIA requests in litigation are actively producing documents, including 12 other cases with court ordered production schedules. The average monthly production rate in those cases is 642 pages.” (emphasis added)

The Defense Declaration is shorter on quantitative data, but does state that the DOD’s Office of Information Council does not possess eDiscovery software and that each record must undergo a manual line-by-line review by OIC staff.

FOIA Council Recommends Standardizing FOIA Software

The Federal News Network’s Jory Heckman has a good piece on the latest Chief FOIA Officer Council’s meeting, available here. The highlight is the council’s subcommittee on technology’s recommendation of “adding commercial, off-the-shelf FOIA and records management software to the General Services Administration’s schedules program, giving agencies an opportunity to purchase these tools without having to shop around for the best deal.” The Veterans Health Administration’s Michael Sarich said the move, which is seen as a “stepping stone for greater adoption of artificial intelligence tools,” could be a “force multiplier” for reducing backlogs and growing numbers of FOIA requests.

Interior Copied FOIA Program Notes from Under-Performing Agencies

FOIA-released emails show that the Interior Department took advice from the FBI and the Environmental Protection Agency when crafting bad new FOIA regulations that allow the department to:

  • Preemptively reject what it defines as “unreasonably burdensome” requests;
  • Impose 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.

Rachel Spector, an official with Interior’s Office of the Solicitor who set up a meeting with the FBI’s FOIA unit, wrote to the FBI stating “I understand from my discussions with the US Attorney’s Office in D.C. that the FBI’s FOIA program and strategy in FOIA litigation is pretty much the ‘gold standard.’” (It isn’t.) Spector seemed especially interested in copying the FBI’s “500-page” per month policy, which caps document releases to 500 pages a month per requester.

The Interior Department also expressed interest in the EPA’s proposed new FOIA regulations which it submitted to the Federal Register without public comment in June. Under the new EPA regulations, “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.” The new EPA regulations 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 the EPA’s regional offices, which have historically accepted FOIA requests, and not national headquarters.

Secret Service Releases Records on Chinese President Xi’s 2017 Visit to Mar-a-Lago

The Secret Service has just released nearly 150 heavily-redacted pages concerning a Chinese delegation’s visit to President Trump’s winter White House, Mar-a-Lago, in April 2017. The release is a belated response to a Freedom of Information Act appeal submitted by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW), as part of a lawsuit to open the White House visitor logs and the records of presidential visitors to Trump properties, including Mar-a-Lago.

The new release on the Chinese delegation led by President Xi Jinping contains little substance and even redacts Xi’s birthday, which is public information (Wikipedia says his birthday is June 15, 1953).

The release comes a month before the Second Circuit Court of Appeals hears oral arguments in the case, Doyle v. DHS.  The government claims that the records, which were routinely released by the Obama administration with no harm to national security, are presidential records. The Archive, CREW, and Knight argued in court filings that the logs are agency records clearly subject to the FOIA, not presidential records that only become available starting five years after the president leaves office. The appeal challenges the district court decision that effectively let “the Secret Service hide their records of everyone who lobbies the President,” according to Archive Director Tom Blanton.

Cyber Brief on Russian APTs at the Olympics

The Archive’s latest Cyber Brief addresses potential cyber threats at the 2020 Olympic Games in Tokyo, particularly threats from Russia, which is currently in danger of being suspended from the Olympics for the second consecutive time due to allegations the country forged medical documents and paperwork relating to fake athlete clinics. Given the operations by Russian-affiliated advanced persistent threats (APTs) during the PyeongChang 2018 Winter Olympic Games, there are credible expectations for cyberattacks in Tokyo. Coordinated cyber campaigns on past Games and affiliated organizations have been traced back to Russian intrusion sets, including APT actors Sofacy and Turla Group (also known as Fancy Bear and Venomous Bear, respectively).

The Vault is posting a variety of primary-source documents and other materials that offer additional context to the issues that includes documents pertaining to the Tokyo 2020 Olympics, the International Olympic Committee’s (IOC) anti-doping rules, the World Anti-Doping Agency’s (WADA) investigation into Sochi allegations, and the DOJ’s indictment of GRU officers.

The Cyber Vault is Hiring!

The National Security Archive’s fantastic Cyber Vault is currently looking for a research assistant beginning September 3. It’s a great opportunity for DC-area grad students – please share widely!

TBT Pick – The INF Treaty, 1987 – 2019

This week’s #TBT pick is chosen with the recent expiration of the Intermediate-range Nuclear Forces Treaty in mind. This week’s posting – The INF Treaty, 1987-2019 – includes key documents from both Soviet and American sources tracing the entire year of INF negotiations in 1987, and highlights the remarkable proposals on the table at the time (mostly from the Soviet side) for even more intrusive inspections and even more dramatic cuts in both strategic and conventional weapons.

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