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Judge Grants DOJ Extension in FOIA Suit for Mueller Report, FOIA Wins Release of COVID Data, ICE Gets “Security Agency” Designation, and More: FRINFORMSUM 7/16/2020

July 16, 2020

Judge Grants DOJ Extension in Mueller Report FOIA Case

Federal Judge Reggie B. Walton is granting the Department of Justice a one-week extension to provide answers justifying redactions it made to the Mueller Report in connection with a FOIA lawsuit brought by the Electronic Privacy Information Center, BuzzFeed News, and BuzzFeed News reporter Jason Leopold. Judge Walton, who has read the unredacted report and been critical of Attorney General Barr’s handling of its contents, said “These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that ‘all of the information redacted from the version of the Report released by the Attorney General’ is protected from disclosure by its claimed FOIA exemptions.”

A hearing on the redactions is currently scheduled for August 17 at 10 AM.

Appeals Court Rules Administrative Burden Not Enough to Keep Surveillance Court Records Sealed

Jason Leopold and the Reporters Committee for the Freedom of the Press scored a legal victory earlier this month in their quest to access judicial court records on the government’s use of surveillance tools frequently used in criminal investigations. Leopold has fought to unseal Stored Communication Act (SCA) warrants and pen register/trap-and-trace orders since 2013, but in 2018, District of Columbia District Court Judge Beryl Howell ruled that the administrative burden of releasing the entire body of surveillance records was too great, and ordered the government to release only a small sample of the records.

Leopold and RCFP appealed, and this month the U.S. Court of Appeals for the District of Columbia overturned part of the lower court ruling. Judge Merrick Garland authored the ruling, arguing that “Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all”. Judge Garland also notes, “The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Production may be time-consuming, but time-consuming is not the same thing as impossible.”

FOIA-Released COVID Data Underscores Pandemic’s Racial Disparity

Black and Latinx Americans have been hit significantly harder by the COVID-19 pandemic than white Americans, this according to newly-released FOIA data. The Centers for Disease Control and Prevention data, which covers 1.5 million case records through May 2020, was won by the New York Times in a FOIA lawsuit and shows that these minority communities have an infection rate three times higher than their white neighbors. But the data, which is the most complete look yet at racial disparities of the pandemic, is far from complete – the Times notes “Not only is race and ethnicity information missing from more than half the cases, but so are other epidemiologically important clues — such as how the person might have become infected.”

ICE Designated a Security Agency

In a blow to transparency, the Trump administration has designated Immigration and Customs Enforcement a “Security Agency”. The security classification grants ICE employees the same status as intelligence agency officials and officials at keystone law enforcement agencies like the FBI and Secret Service. The designation, which applies to all ICE employees, “blocks from disclosure information that is typically public, such as name, job title, and salary.” The classification, which ICE argued for years was needed to protect its employees’ privacy, was granted on June 11, according to a June 26 memo signed by ICE head Matthew Albence.

Open The Government’s Policy Director, Emily Manna, notes that the privacy justification is a flimsy one, saying “The Freedom of Information Act already contains a sufficient exemption to protect legitimate personal privacy interests. Preventing the public from obtaining any information about ICE agents—who are public officials—is a violation of the public’s right to know and should be reversed immediately.”

The move also comes four months after the Trump administration designated Customs and Border Protection a Security Agency, signaling a possible shift away from the immigration agencies’ original mandates.

Justice for the Jesuits – NSArchive’s Kate Doyle Testifies in Historic Trial

More than three decades after the shocking execution of six Jesuit priests by the Salvadoran military, National Security Archive senior analyst Kate Doyle testified last week at the historic legal proceedings in Spain to hold senior officials accountable for the November 1989 atrocity. Acting as an expert witness, Doyle authenticated hundreds of declassified U.S. records that have been submitted as evidence to the Spanish tribunal in the case of the Jesuits.

“The U.S. documents provide a strong credibility, and a clear relevance to clarifying the crimes that were committed,” as Doyle, who directs the El Salvador Documentation Project at the National Security Archive, informed the court.

The legal proceedings against former Vice Minister of Public Security Col. Inocente Orlando Montano began in June 2020. Montano, who quietly left El Salvador in 2001 was discovered by human rights investigators living outside Boston in 2011. He was convicted of immigration fraud and, in November 2017, extradited to Spain to stand trial for his role in the Jesuit massacre.

Get the whole story here.

In Brief

  • Don’t miss Citizens for Responsibility and Ethics in Washington’s (CREW) Anne Weismann’s op-ed on FOIA. Weismann notes that while the ongoing pandemic and lack of leadership from the Trump administration have severely hampered many agencies’ FOIA offices, the situation is not beyond repair; she states, “The government as a whole must shift from a culture of secrecy and withholding to one of disclosure. Agencies must devote significant and sufficient resources to ensure timely processing of requests. And they must treat the FOIA as mission critical, not a responsibility that can be readily abandoned when meeting its requirements becomes inconvenient, or politically harmful. All of these are policy choices that an administration and agencies can make without requiring any legislative or regulatory changes.”
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