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Sunshine Week Round-Up, Ways to Strengthen the Presidential Records Act, COVID-19 Transparency Resources, and More: FRINFORMSUM 3/20/2020

March 20, 2020

Sunshine Week Round-Up

GAO Report Released

Today marks the end of this year’s Sunshine Week, the annual, week-long celebration of access to information. To mark the occasion, Senators Patrick Leahy, Charles Grassley, Dianne Feinstein, and John Cornyn, together with House Oversight Chair Carolyn Maloney, released the results of the first of two GAO reports on agency compliance with the 2016 FOIA amendments. The legislation required agencies to update their FOIA regulations within 180 days of passage, and mandated a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), among other key fixes.

The report’s key findings include:

  • Costs of litigating FOIA requests have shot up nearly 70% since FY 2012.
  • FOIA requests have increased 30% since FY2012, but FOIA staff have increased by only 21%.
  • Only a quarter of requests were granted in full in FY 2018.
  • Agencies, which are required to proactively post documents likely to be of public interest or that are the subject of three or more FOIA requests, published fewer than 155,000 documents proactively in FY2018.

Principal Deputy Associate Attorney General Claire Murray

Misinformation at OIP Event

A Justice Department official used the Department of Justice’s Office of Information Policy Sunshine Week event to spread misinformation on FOIA. Principal Deputy Associate Attorney General Claire Murray said that FOIA requesters are now litigating more quickly – a statement that is not borne out by the data, which shows that requesters are actually waiting longer to file FOIA lawsuits; Murray went on to imply that ordinary requesters were suffering because of “the well-funded” filing FOIA lawsuits. The Transactional Records Access Clearinghouse at Syracuse University (TRAC) published a thorough rebuttal, noting that Murray’s “counterfactual claim was used to sow unnecessary division between, on the one hand, citizens who seek remedy in court when the government fails to comply with the law, and, on the other, government staff and ‘ordinary citizens.’ The fact that FOIA requesters are waiting longer to file lawsuits when the government fails to keep its end of the bargain suggests that requesters would, in fact, prefer to work with the government to avoid the expensive and lengthy process of litigation.”

The FBI Stops Accepting FOIA Requests by Email, Sends FOIA Staff Home

The FBI took two steps this Sunshine Week that virtually assured no FOIA work will happen for the foreseeable future. For its first move, the FBI, citing COVID-19, told requesters that it would no longer accept emailed requests, instead requiring requesters to send requests via snail mail. Buzzfeed News’ Jason Leopold pointed out the counter-intuitive move on Twitter, noting that the Bureau did not explain the rationale for demanding requests be sent by hand – at a time when all Americans are being strongly encouraged to stay home – rather than by computer. (Leopold also notes that the FBI’s FOIA regulations state that all Bureau components “have the capability to receive requests electronically either through email or a web portal.”

The FBI didn’t stop there. For its second move they sent home the entire FOIA division with the argument that processing FOIA requests is not critical to the organization’s mission.

601 Consecutive Pages Withheld under B5

The American Immigration Council filed a FOIA request for records on Customs and Border Protection’s use of Border Patrol officers as asylum officers and were rewarded for their efforts with over 600 pages of completely redacted documents. The exemption cited? FOIA’s “withhold it because you want to” Exemption 5; a discretionary exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public. Considering both that OIP’s own guidance on the exemption states that the exemption should be applied to “only those documents that are normally privileged in the civil discovery context”, and that FOIA prohibits agencies from withholding information to prevent embarrassment, hide errors and failures, or because of speculative or abstract fears, it strains credulity that the entire 600+ pages could be entirely exempt from disclosure. Thanks to AIC’s Aaron Reichlin-Melnick for flagging.

What Instant Messages?

Americans for Prosperity and Cause of Action have published a wonderful report on how many agencies are not complying with either the Federal Records Act or the Freedom of Information Act when it comes to preserving instant messages and providing them in response to public records requests. The key takeaway: “Only four agencies receive passing scores: FCC, CIGIE, USDA, and NASA,” and 36 agencies either failed or did not respond to the FOIA request requesting information on their agency’s IM records management policies.

Sunshine Chat

Today the National Security Archive will be joining twelve other transparency organizations in a Twitter Q&A on the importance of freedom of information. Follow the event, organized by our friends at the Reporters Committee for Freedom of the Press, starting at 2 PM ET with the hashtag #SunshineChat2020!

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How Transparent is President Trump? Audit Shows Three-Quarters of His Decisions Bad for Openness

President Trump has made three times as many pro-secrecy decisions as pro-transparency ones since taking office, this according to a National Security Archive Audit released to mark Sunshine Week. The survey found that the President’s anti-transparency decisions – including classifying coronavirus talks, hiding the White House visitor logs, and keeping his tax returns secret – significantly outnumber the good transparency decisions he’s made, including following through with the Argentina declassification project and working for more transparent hospital and prescription drug prices.

The Archive audit team scoured White House press releases, news reports, and court cases to create an interactive chronology of Trump’s good, bad, and occasionally perplexing transparency decisions since taking office. The results undercut the President’s repeated claim that he is the most transparent president in history, but do provide some insights into areas where the President and his team have consistently promoted transparency.

Strengthening the Presidential Records Act

The Archive’s Sunshine Week Audit, which highlighted President Trump’s anti-transparency behavior – including ripping up his papers once he’s done with them – underscores the need to strengthen the Presidential Records Act. Some possible fixes include:

  • Congress outlawing disappearing instant messages. In 2018, the U.S. District Court for the District of Columbia’s Judge Christopher Cooper ruled against Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive in our Presidential Records Act lawsuit targeting the Trump administration’s use of disappearing messaging apps. Cooper said the plaintiffs were“likely right on the merits, but that he was nevertheless constrained to grant a government request to dismiss the suit on procedural grounds” – in part because Congress made no provision for private groups to seek the enforcement of the PRA.
  • Explicitly requiring the President “to make and preserve records”, just as the Federal Records Act requires agencies to do.
  • Striking the disposal provisions of the law (2203 (c)-(e)). The era of cloud storage eliminates the need to dispose of records in the first place, and if disposable is not enabled by law, automatically saving the records would be the default.
  • Congress statutorily requiring the White House Office of Administration to monitor and report on the Executive Office of the President’s compliance with the PRA.
  • Congress requiring the Archivist of the United States to monitor, review and report on EOP compliance with the PRA, and for the Archivist to review and sign off on White House record-keeping guidelines and practices.

The PRA was most recently amended in 2014. Those amendments established a process for the publication of presidential records after the president leaves office, made it harder for former executives to block publication of their records by citing executive privilege; forbade executive branch officials from conducting government business over personal email, thereby evading the FOIA; and modernized records management by expanding and clarifying the definition of electronic records.

COVID-19 Transparency Resource

The Project on Government Oversight has launched a website dedicated to tracking COVID-19 transparency resources. As of writing this, the page has nearly two dozen Congressional Research Service reports relevant to the crisis, as well as Government Accountability Office reports, federal pandemic response plans, and a variety of other useful resources. 

Salvadoran Court Needs U.S. Documents on El Mozote Massacre

Salvadoran Judge Jorge Guzmán Urquilla, who is overseeing the trial of the perpetrators of the 1981 El Mozote massacre is requesting access to U.S. government records on the crime (the massacre took place during the country’s 12-year civil war and ranks, with the deaths of over a thousand citizens, as the worst in modern Latin American history). The trial began in 2016, but Judge Urquilla recently requested help from Secretary of State Mike Pompeo, writing that US records “could be very valuable to us.” So far, the State Department has not responded.

The Archive’s Kate Doyle has used FOIA to obtain hundreds of Clinton-era records on the Salvadoran civil war, but knows there are more documents that need to be published. “There is no doubt that we would find incredibly strong and relevant information related to this case if the U.S. opened up its archives,” Doyle told the Washington Post. “The CIA and defense attaches had a direct line to senior Salvadoran military structures, with direct access to army commanders on the field. They had detailed information about what the regime was doing in its counterinsurgency campaign.”

False Warnings of Soviet Missile Attacks Put U.S. Forces on Alert

During the Cold War, false alarms of missile attacks were closely held matters although news of them inevitably leaked. The National Security Archive recently revisited the false alerts of the Jimmy Carter administration when on four occasions warning screens showed hundreds and hundreds of Soviet ballistic missiles heading toward North America.

In a reposting and update of a 2012 collection, the Archive includes recently declassified documents with new details about the 1979 and 1980 false warnings. One document, notes by William Odom, the military assistant to National Security Advisor Zbigniew Brzezinski, raises questions as to whether Odom called the latter in the middle of the night about the possibility that Soviet ICBMs were incoming. Such a phone call was a major element of the 2012 posting, but Odom’s notes on the 3 June 1980 false alarm make the picture murkier. The only certainty is when Odom spoke to Brzezinski that day, he assured him he had kept the White House “in the loop” during the period of the false alarm.

The false alarms of 1979 and 1980 instigated major efforts to ensure that computers did not generate mistaken information that could trigger a nuclear war. In today’s world where more medium size to great powers, such as North Korea and China, either have ICBMs or are testing them the potential for false alarms is growing.

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