Growing FOIA Backlogs Should Prompt More Automatic Declassification, Proactive Disclosure; DNI Haines Says Too Much Classified Info Hurts National Security; Obama Presidential Records Now Subject to FOIA, and Much More in this Week’s Super-Sized FRINFORMSUM 1/27/2022

FOIA Backlogs Doubled in Ten Years

The main finding of the Government Accountability Office (GAO)’s new FOIA report is that FOIA backlogs have nearly doubled in the last ten years; the report found “FOIA request backlogs increased by 18 percent (from 120,436 to 141,762) from fiscal year 2019 to fiscal year 2020. Backlogged requests have been trending generally upwards since fiscal year 2016 … From fiscal year 2012 to fiscal year 2020, backlogs increased by a total of 97 percent.” 

FOIA backlogs have long been a perennial issue; President Obama tasked agencies in 2009 to reduce their FOIA backlogs by 10 percent a year, but by 2017 the Department of Health and Human Services was the only agency to have reached that goal. Government-wide, the problem is only getting worse. COVID-related delays exacerbated pre-existing problems and added new ones; including for the FBI FOIA office, whose classified FOIA system left it unprepared to adjust to the demands of telework. 

The increasing backlog of FOIA requests should make it clear to agencies and Congressional overseers alike that the only way forward is making automatic declassification and proactive disclosure robust, systematic features of each and every FOIA shop.  

The report also found that the number of FOIA requests received government-wide dropped by eight percent in fiscal year 2020 from fiscal year 2019. GAO also touts what may seem like a success – that “Agencies government-wide took less time on average to process simple and expedited requests, while taking more time to process complex requests from fiscal years 2019 to 2020.” What is not mentioned in the report is that the difference between simple and complex requests can be arbitrary; one agency – the Defense Intelligence Agency – claims that only two percent of its FOIA requests are simple. Focusing on requests that agencies self-define as simple paints a distorted picture of overall FOIA processing.

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DNI Haines Says Too Much Classified Information Hurts National Security

Director of National Intelligence Avril Haines says, “The U.S. intelligence community’s approach to classifying vast amounts of information is so flawed that it harms national security and diminishes public trust in government.” The acknowledgement that overclassification undermines national security, which the National Security Archive has been arguing for decades, was made in a letter Haines sent to Sens. Ron Wyden (D., Ore.) and Jerry Moran (R., Kan.) earlier this month. The letter was in response to an October 2021 request for information from Wyden and Moran, who are pushing to overhaul the declassification system, which they assess costs the public $18.5 billion a year. Haines explicitly states, “It is my view that deficiencies in the current classification system undermine our national security, as well as critical democratic objectives, by impeding our ability to share information in a timely manner.”

Stars and Stripes Reporter Sues DOD Over its Refusal to Accept FOIA Requests From Military Paper

Stars and Stripes reporter Chad Garland is suing the Defense Department for its refusal to process his FOIA requests and subsequent appeals because he works for the military publication. (Stars and Stripes is administered under the Pentagon’s Defense Media Activity; it is editorially independent but receives a DoD subsidy to offset the costs of providing a paper to troops stationed overseas.) The Pentagon stated in a March 4, 2021, memo that “any representative of (Stars and Stripes) cannot use the FOIA to gain access to DoD information,” continuing that, “If you receive a request from a (Stars and Stripes) employee that does not demonstrate (the publication’s) approval, you should close it as ‘not a proper FOIA request.’” The Pentagon’s stance on Stars and Stripes reporters is startling, considering that the Department accepts FOIA requests from reporters from papers from around the world, as well as from foreign governments.

Garland’s suit argues that the Pentagon does not have the right to restrict a private citizens’ ability to file a FOIA, and cites the 11th Circuit decision in Sikes v. Navy that ruled, “the Supreme Court has made clear that ‘the identity of the requesting party has no bearing on the merits of his or her FOIA request.’” National Security Counselors’ Kel McClanahan told Stars and Stripes’ Alison Bath that, “If the policy prevails, it could have a chilling effect on transparency, allowing the Pentagon or other agencies to restrict federal employees from using FOIA in a variety of cases, such as those involving whistleblowers.” 

Obama Presidential Records Now Subject to FOIA

President Barack Obama’s records became subject to the FOIA on January 20, 2022, five years after President Obama left office, in accordance with the Presidential Records Act. The requested records will be released through both the New Obama Library website and the NARA catalog, but there will be no research library on site at the Obama library. This has prompted concerns that presidential scholarship may suffer, and begs questions about what this model could mean for future presidents unconcerned with preserving “nonpartisan public history,” according to the New York Times. (It is worth noting that the current presidential library system is not anywhere near perfect; current wait times for presidential records are well over a decade in the National Security Archive’s experience.)

For more information on how to request President Obama’s records, use this Fact Sheet. 

Lawmakers Skeptical of CIA’s Havana Syndrome Report

The CIA’s interim Havana Syndrome report found that there is no evidence of a foreign power “mounting a global attack aimed at U.S. personnel who have reported painful and sometimes debilitating physical symptoms.” Reports of US intelligence, diplomatic, and military personnel stationed overseas suffering from a spate of mysterious symptoms – including debilitating dizziness, headaches, tinnitus, and documented brain injuries – began in Cuba in 2016, earning the nickname Havana Syndrome, and cases now tally more than 1,000  worldwide. Some speculated that a foreign power was using an unknown, sophisticated microwave weapon in the global attack – a premise the report rejects, although it does not rule out that a foreign actor may be responsible for a small number of unsolved cases.

The report, and the absence of a clear diagnosis for the syndrome, may make it more difficult to implement the Havana Act, which was signed into law by President Biden in October 2021 and gives the government “six months to establish a framework for making payments to individuals who have suffered from related health incidents.”

Politico reports that both Republican and Democratic lawmakers are criticizing the findings, questioning “the interim assessment’s timing and inconclusive nature, along with the fact that the report was not coordinated with other intelligence agencies ahead of its release.” Sen. Mark Warner (D-VA), chair of the Senate Intelligence Committee, also questioned why the agency released its report a week and a half before the intelligence community’s expert panel on Havana Syndrome is expected to complete its own investigation.

For more information on the Havana Syndrome, read Peter Kornbluh’s 2021 posting, CDC Report on the ‘Havana Syndrome’: Medical Mystery Remains Unresolved.

U.S. Ambassadors to Russia Interviewed

The National Security Archive recently updated our publication of interview transcripts from eight former U.S. ambassadors to Russia, providing essential historical context to debates over U.S.-Russian relations, with three additional interviews with the deans of American diplomacy with Moscow – Jack Matlock, Thomas Pickering, and James Collins.

The interviews are courtesy of the Middlebury Institute for International Studies at Monterey, where the Graduate Initiative in Russian Studies, under the direction of Professor Anna Vassilieva, has organized the entire Ambassadorial series of interviews and is publishing the material in videos, podcasts, and transcripts.

The three new interviews cover the 1990s in Russia and the rise of Vladimir Putin through the expert eyes of Jack Matlock, ambassador from 1987 to 1991, Thomas Pickering, ambassador from 1993 to 1996, and James Collins, ambassador from 1997 to 2001.  The interviews were conducted in 2021 by the Middlebury Institute’s expert Dr. Hannah Notte, based in Vienna.

National Security and Climate Change: Behind the U.S. Pursuit of Military Exemptions to the Kyoto Protocol

Pentagon demands for military exemptions during the 1997 Kyoto climate negotiations posed a substantial challenge for the Clinton administration both internally and with American allies, according to a collection of declassified internal papers posted last week by the National Security Archive. These documents have particular relevance as the Biden administration advances its climate change policy and the Pentagon commits to climate adaptation measures.

The records, which can be read here, primarily focus on the perspectives of U.S. negotiators and officials, but also include the views of members of Congress and others who were critical of the Kyoto Protocol because they wanted even larger carve-outs for military operations.

In Brief

• The National Security Archive and Reveal News from the Center for Investigative Reporting released the second installment of the new podcast “After Ayotzinapa” this Saturday, January 22, 2022. The ongoing three-part series is the result of a three year investigation by National Security Archive senior analyst Kate Doyle and Reveal News senior reporter Anayansi Diaz-Cortes into the September 26, 2014, disappearance of 43 students of the Ayotzinapa Rural Teachers’ College. Learn more about the massacre, and where to listen to the podcast, here. 

• A reverse FOIA lawsuit in Washington State is being brought by six Seattle Police Officers against reporters covering their presence at the January 6 Stop the Steal rally in Washington DC. Reporter Sam Sueoka details the case, which argues that the PRA request for their names violates the police officers’ right to protest, here; a hearing is currently scheduled for this Friday, January 28. For more information on, and examples of, reverse FOIA lawsuits, visit FOIA Wiki.

• The Washington Post revealed in December 2021 that Maryland governor Larry Hogan uses the disappearing messaging app Wickr; Hogan argues the use of the app isn’t in violation of the state’s open records law because the messages sent through them are not subject to the state’s FOI law. The Reporters Committee for the Freedom of the Press dismantles Hogan’s erroneous claim here. 

• The Chief FOIA Officers Council will hold a virtual meeting with the public on requesters’ experience with FOIA on Wednesday, February 2 at 2 PM EST . RSVP by the end of January here.