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Judge Finds No Legal Basis for Commerce’s Exorbitant FOIA Fees, Declassified US Docs on Rios Montt, and More: FRINFOMRUSM 4/5/2018

April 5, 2018

AP photo/Nick Ut

Judge Finds No Legal Basis for Commerce Dept. Attempt to Charge Hundreds of Thousands for Two Data Sets

A federal judge has ruled against the Commerce Department and in favor of reporter David Yanofsky in a FOIA lawsuit targeting the agency’s attempt to charge exorbitant FOIA fees. Specifically, the court found no legal basis for Commerce’s attempt to charge nearly $174K for access to government immigration data and ordered the agency to re-evaluate the fees; Yanofsky says the fees now “will likely cost me less than $30—possibly even nothing at all.”

For years the Commerce Department maintained that Yanofsky had to pay $173,775 for two databases because “it only gives that information to people and companies that pay for the privilege.” The databases are the only comprehensive records on who enters the US; one database is on anonymous immigration records and the other statistics about international air travelers. Yanofsky says “a representative for the International Trade Administration initially told him that the DOC bureau ‘did not want to release the records to [him] because it wanted to protect the revenue the data generated.’” Yanofksy correctly argues, however, that “Just because there may be a market for this information shouldn’t make it exempt from public disclosure.”

New York Court of Appeals OK’s NYPD Glomar

The New York state Court of Appeals has upheld a lower court ruling that the New York Police Department can invoke a Glomar response to requests from citizens wanting to learn if they were the subject of NYPD surveillance. In the original ruling, which was “the first time New York courts have considered the Glomar doctrine, which isn’t established in the statutory language of the FOIL or previous state caselaw,” the court found that because of the “heightened law enforcement and public safety concerns identified in the affidavits of NYPD’s intelligence chief, Glomar responses were appropriate here.” The appeals court agreed.

Prior to the NYPD’s usage, the Glomar response, in which the government says it can neither confirm or deny it has the records in question, has only been invoked by the federal government – and then primarily by intelligence agencies in cases that concern national intelligence information.

The New York Appeals Court ruling is troubling because Glomars are considerably more difficult to appeal than a regular FOIA denial, and it paves the way for other local law enforcement agencies to invoke the secrecy-catch-all.

If you are curious about the history of the Glomar response – named after the CIA’s six-year attempt to salvage a Soviet nuclear submarine from the bottom of the Pacific during the height of the Cold War – check out Nate Jones’ blog on history of the operation and how it became public.

Ríos Montt leaves the Guatemalan tribunal, where he is being tried on genocide charges. (Photo credit: Daniel Hernández-Salazar)

Ex-Guatemalan Dictator Efraín Ríos Montt Has Died – Declassified Documents Describe Brutal Tactics

Recently-deceased Guatemalan dictator Ríos Montt’s decision to purge and reorganize the military in the 1980s prepared the armed forces for what would become the most intensive phase of the counterinsurgency in the conflict’s twenty-year history. Under Rios Montt the army’s strategists began to plan the scorched earth operations that would decimate the Mayan regions of the country in the months to come.

Some of the contemporaneous US records noted:

  • “The army intended to act with two sets of rules, one to protect and respect the rights of average citizens who lived in secure areas (mostly in the cities) and had nothing to do with subversion. The second set of rules would be applied to the areas where subversion was prevalent. In these areas (‘war zones’) the rules of unconventional warfare would apply. … Guerrillas would be destroyed by fire and their infrastructure eradicated by social welfare programs.”
  • In a report dated May 23, 1983, the CIA pointed out that “The insurgency has already forced the military, the strongest institution in Guatemala, to acknowledge that long-ignored sections of the country like the Western Highlands are exploitable political power bases.”
  • That same month, the US Embassy declared that the Junta “has announced a pacification campaign based on the two F’s, ‘Fusilesand Frijoles (Rifles and Beans).’ It has announced instructions to the security forces to ‘protect campesinos, not repress them.’ It has arranged mass demonstrations of civilian militiamen in the war torn ‘Ixil Triangle’ of Quiché, and provides food and medical aid to Quiché refugees… The Junta has clearly embarked on a campaign to win the hearts and minds of the campesinos, and probably to improve the GOG’s international image.”

Learn more about his scorched earth counterinsurgency campaign and 2013 indictment for crimes against humanity on our Guatemala Project page.

Why We File

To celebrate Sunshine Week 2018, the National Security Archive’s FOIA Project director Nate Jones talks to the Export Import Bank about the Freedom of Information Act from a requester’s perspective.  Watch the video here.

MLK in 1963. AFP.

TBT Pick – “Disreputable if Not Outright Illegal”

This week’s #TBT pick is a 2013 posting highlighting a declassified NSA history that divulges the name of prominent Americans surveilled during the Vietnam era – including Martin Luther King, Jr. King’s status as an NSA target was previously speculated, but the NSA declassification is the first time it was officially declassified. The multi-volume study, American Cryptology during the Cold War, also reveals:

  • An August 1961 intercept provided advance warning information of the East German decision to close the intra-Berlin borders, the action that led to the Berlin Wall.
  • Weeks before the Cuban Missile Crisis occurred, the NSA detected that the Soviets put military forces on higher alert and stood down their strategic bomber fleet. Apparently Moscow was worried that the United States had discovered the missile deployments.
  • NSA wiretaps on Panama’s president Omar Torrijos during the 1970s may have given U.S. diplomats an advantage in the negotiations that produced the Panama Canal Treaty.

Read more here.

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Why We File: Perspectives from a FOIA Requester

April 4, 2018

To celebrate Sunshine Week 2018, the National Security Archive’s FOIA Project director Nate Jones talks to the Export Import Bank about the Freedom of Information Act from a requester’s perspective.  Watch the video below:

NARA Unauthorized Destruction Chart Highlights Troubling Pattern of Disappearing Records and Encrypted Messaging Apps: FRINFORMSUM 3/29/2018

March 29, 2018

NARA Publishes First Unauthorized Destruction Chart

This week the U.S. National Archives published its first “unauthorized disposition of federal records” chart. The chart – which includes both open and closed cases and will be updated monthly –  catalogs all of the cases NARA investigated in Fiscal Year 2017 concerning the “actual, impending, or threatened unlawful removal, defacing, alteration, corruption, deletion, erasure, or other destruction of records.” The chart includes NARA’s correspondences with the agencies when available.

A quick look shows that the departments of State, Interior, Agriculture, and Justice were the most frequently investigated agencies, and that disappearing records and encrypted messaging applications were a common theme. Some “highlights” from the chart are:

  • An investigation into the Environmental Protection Agency for allegedly using the “encryption messaging application, Signal, to achieve specific goals circumventing the government’s ability to monitor communication related to government business and to covertly avoid federal records requirements.”
  • An inquiry into the National Oceanic and Atmospheric Administration, which “may illegally be destroying records (electronic messages through Skype and Google Chat) of a recent meeting discussing new regulations against the fishing industry.”
  • A Department of Defense case concerning DoD IG employees Lynne Halbooks and Henry Shelley, who “are subjects of court investigation that they allegedly destroyed documents in DoD IG’s investigation of former NSA whistleblower Thomas Drake. In March 2016, the Office of Special Counsel referred the case to the DOJ where it remains under review.”

OGIS Empowerment Act A Common-Sense Improvement, Moves to Senate

The Office of Government Information Services Empowerment Act of 2018 was passed out of the House this week (H.R. 5253) and will hopefully be taken up by the Senate. The bill states that “Each agency shall make any record available to the Director of the Office of Government Information Services for purposes of carrying out this subsection, upon request of the Director.”

This amendment would address a current bureaucratic bottleneck OGIS faces – agency System of Records Notices (SORNs). Currently, as OGIS notes in its blog, “an agency is not allowed to routinely share a FOIA file with another agency unless it obtains the requester’s consent for a file to be shared or notifies the public by updating its PA Systems of Records Notice (SORN) to include routine-use language for OGIS.  If an agency has not published a Privacy Act SORN letting the public know that its files might be shared with us, we must first obtain written authorization from the requester before we can discuss his or her request with the agency.” This is a time-consuming process when a requester has sought out OGIS’s mediation services.  If taken up by the Senate and passed, the bill would also save agencies money because it wouldn’t require each individual agency update their SORN’s in the federal register to include OGIS language.

Congressman Could See How CRS Reports “would be in great demand by newspapers and women’s clubs, and so forth”

The Washington Post highlights the transparency win in the omnibus spending bill recently signed into law by President Trump – public access to Congressional Research Service reports. Trump’s signature lifted a 64-year-old ban that stemmed from concerns about the cost of making “photostatic” copies and that kept the CRS from sharing its research with the public – which has paid more than $100 million a year for the work. Of the initial ban on making CRS reports public Sen. Karl E. Mundt (R – S.D.) said, “I can see how that kind of analysis would be in great demand by newspapers and women’s clubs, and so forth, and unless put on some compensatory basis would run to quite an expenditure.”

The provision that frees the CRS reports was included in the recent spending bill thanks to the work of Senators Patrick Leahy (who “took advantage of his position as vice chairman of the Senate Appropriations Committee to slip the language into the legislation”) and John McCain and Representatives Mike Quigley and Leonard Lance.

CIA’s In-House Board Games Can Now be Yours Thanks to FOIA

The CIA has released the art, rules, and design documents for two board games – Kingpin: The Hunt for El Chapo and Collection Deck – it used at a South by Southwest event thanks to a FOIA request. Ars Technica reports that it is difficult to determine the precise rules for either game, nothing that Collection Deck’s rules are especially vague because the agency’s internal training cards “are marked up to an incredible degree, since they refer to a number of apparently classified intel-collection practices.”

The CIA is not new to board games – or toys in general. In 2014 a Washington Post article revealed that the agency had plans to make the scary doll – whose face was designed to frighten children and painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings” – and to distribute them in Afghanistan or Pakistan.

Judge Reinforces Government’s Sourcing ‘on Background’ in FOIA suit

U.S. District Judge Gregory Woods ruled in the government’s favor in a FOIA lawsuit trying “to shed light on the U.S. government’s anonymous press briefings.” In the 51-page ruling, Woods supported the State Department’s decision to withhold the names of officials in background briefings, finding “that public interest is insufficient to tip the scale in favor of disclosure.” The judge went on to note a “Second Circuit ruling that found Department of Defense employees especially have a vested interest in anonymity.”

The Archive’s John Prados Talks John Bolton and National Security

The National Security Archive’s John Prados recently discussed John Bolton, Mike Pompeo, Gina Haspel, and national security with Late Night Live on Australia National Radio. Check out the interesting interview here.

Key Targets for SAC Forces.

TBT Pick – U.S. Cold War Nuclear Target Lists Declassified for First Time

This week the Washington Post highlighted a top secret 1956 Strategic Air Command nuclear target list released to and published by the National Security Archive. The remarkable document – which includes planning targets, 200 in Moscow alone – was used to show that, in President Trump’s first year, the size of the US nuclear arsenal was the smallest it had been since the 1956 document was created.

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Disappearing Messaging Apps Are Subject of Ethics Training Thanks to PRA Suit: FRINFORMSUM 3/22/2018

March 22, 2018

Presidential Records Act Case Draws Attention to White House’s Disappearing Messaging Apps

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. The suit was filed in June 2017 on the heels of reports that some members of the White House staff were using messaging apps, like Confide, that prevent the storage and preservation of records.

Cooper said the plaintiffs werelikely 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.

The Washington Post reported during the course of our suit that “White House lawyers have been reminding President Trump’s staff not to use encrypted messaging apps for official government business” because doing so could run afoul of the PRA  — in and of itself a positive outcome from the Archive’s litigation.

The Archive and CREW are currently considering our options going forward.

Is the Dissent Channel Safe from Retaliation Under Trump Administration?

Talking Points Memo reports that two State Department officials responsible for “sidelining a civil servant suspected of disloyalty to the President” are also in charge of the Department’s Dissent Channel. The news is troubling because the position likely gives the overseeing officials access to the names of those who voice opposition to official policy and could reasonably deter or intimidate those who want to dissent. TPM’s report has prompted calls from Democrats on the House Oversight Committee to ensure that the dissent channel is overseen by non-partisan actors.

The news comes on the heels of the National Security Archive’s FOIA lawsuit victory securing the release of dissent channel cables dating from the early 1970s through the early 1990s. The declassified cables show, among other things, Foreign Service Officers protesting US inaction over My Lai atrocities, US “policy of non-intervention in Burundi during massive murdering of Hutu tribesmen”, and US recognition of Guatemalan dictator General Efrain Rios Montt.

In the words of Ambassador and dissenter Thomas Boyatt, “In the US federal government (and probably the world) [the institutionalization of dissent] exists in only one place – the US Department of State. For more than 40 years, whistleblowers and those prepared to tell truth to power have been protected and respected there.”

Government Study Saying Booze is Good for You Funded by Alcohol Industry

Records won through FOIA helped inform a New York Times investigation showing, contrary to official statements, that National Institute of Health officials sought substantial industry fundraising for a study on alcohol. Specifically, the Institute on Alcohol Abuse and Alcoholism, one of NIH’s 27 centers, vigorously courted the alcohol industry to fund a 10-year $100 million study by saying that it “might well deliver all the medical evidence needed to recommend a daily alcoholic drink as part of a healthy lifestyle.”

NIH announced after the Times story broke that it is investigating whether officials violated agency policy when soliciting industry funding for the study.

FOIA Shows Zinke’s Security Detail on Personal Vacation

FOIA-released records are raising more questions about Department of the Interior Secretary Ryan Zinke’s travel expenses and mixing of personal and official business. The records show that the secretary and his wife brought a security detail on an international vacation to Turkey and Greece, a trip on which he conducted no government business. Politico reports that “Only two agencies — the State Department and the Secret Service — have specific authority allowing them to provide security to executive branch officials” and that there should be a compelling national security threat for bringing a security detail on a personal vacation.

The Interior Department’s Inspector General will also release a report next month on the Secretary’s attendance of political functions while on official business next month.

CRS Reports to Be Available To The Public

Senator Patrick Leahy (D-VT) secured a big transparency win for open government in the Omnibus Appropriations Bill released Wednesday night. Senator Leahy successfully included a provision in the bill that makes “all non-confidential reports prepared by the Congressional Research Service (CRS) freely available to public schools and libraries across the country.  That means they will be freely available online to individuals, schools and universities, researchers, and libraries.”

This is a significant victory that members of Congress, including Senators Leahy and John McCain, as well as open government advocates like Daniel Schuman at Demand Progress, have been working on for more than 15 years. Congrats to all!

The Nuclear Nonproliferation Treaty and the German Nuclear Question: Part II, 1965-1969

Declassified documents recently published for the first time by the National Security Archive and the Nuclear Proliferation International History Project show that the Nuclear Non-Proliferation Treaty (NPT), widely accepted today as a global standard for international nuclear policy, was actually a source of significant tension between the United States and West Germany in the mid-1960s.

The posting marks the 50th anniversary of the NPT’s approval by the United Nations General Assembly and concludes a two-part series on U.S.-West German interactions on nonproliferation from the late 1950s to 1969.

Part 1, Preoccupations with West Germany’s Nuclear Weapons Potential Shaped Kennedy-Era Diplomacy, can be read here.

NATO Expansion: What Yeltsin Heard

Declassified documents from U.S. and Russian archives show that US officials led Russian President Boris Yeltsin to believe in 1993 that the Partnership for Peace was the alternative to NATO expansion, rather than a precursor to it, while simultaneously planning for expansion after Yeltsin’s re-election bid in 1996 and telling the Russians repeatedly that the future European security system would include, not exclude, Russia.

The declassified US account of one key conversation on October 22, 1993, shows Secretary of State Warren Christopher assuring Yeltsin in Moscow that the Partnership for Peace was about including Russia together with all European countries, not creating a new membership list of just some European countries for NATO; and Yeltsin responding, “this is genius!”

A year later, Yeltsin would accuse the U.S. of replacing the Cold War with a “cold peace” by planning to expand NATO; and the Americans tried to repair relations by insisting that expansion would happen, but slowly, “no surprises,” and only after the Russian parliamentary elections of 1995 and the Russian and U.S. presidential elections of 1996.

TBT pick – U.S. Military Hoped for Virtually Unlimited Freedom of Action in Iraq

This week’s #TBT pick is chosen with the 15th anniversary of the US invasion of Iraq in mind. This week’s #TBT pick is a 2010 posting from the Archive’s Iraq Project on the lead-up to the Iraq war, specifically focusing on declassified US and British documents that gave no indication alternatives to invasion were seriously considered – contrary to statements made by both President Bush and Prime Minister Blair at the time.

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CIA Caught Between Operational Security and Analytical Quality In 1953 Iran Coup Planning

March 19, 2018

By Danielle Siegel

The National Security Archive posted the most recently-reviewed version of the partially-declassified internal CIA history of the 1953 coup in Iran, Zendebad, Shah!” this February. This version, written by CIA historian Scott A. Koch and released by the agency in late 2017, includes a number of previously-secret passages about the planning and execution of the coup—known internally as Operation TPAJAX. Arguably its most notable inclusion is an appendix titled “CIA and Operation TPAJAX: The Tension Between Analysis and Operations.

The appendix paints a picture of a divided CIA in which analysts were denied information about the operational details on the ground in Iran, a dynamic that was encouraged by high-level agency officials and impacted the accuracy of intelligence briefings received by the Eisenhower administration. However, there are a few more interesting points that Koch emphasizes in this appendix that warrant further exploration—most notably what TPAJAX illustrates about the tensions that exist between operational security and analytical quality in the planning and execution of covert operations, the factors driving that dynamic, and what lessons he thinks ought to be learned from the operational-analytical divide.

Koch notes that in any covert operation, “Preparation must balance the need for fully informed decisionmaking with the need for strict operational security,” ultimately concluding that “TPAJAX was planned and executed with far greater concern for operational security than for ensuring that the planners had all relevant information” [113]. This “philosophical tension,” to use Koch’s words, between operational security and informed analysis manifested itself in a systemic lack of communication between operatives and analysts throughout the planning and execution of TPAJAX. He notes that “There is no evidence that the [   ] in Kermit Roosevelt’s NEA Division consulted the Office of National Estimates (ONE) or the analysts in CIA’s Office of Current Intelligence (OCI) at any stage of the operation,” and adds that the Office of Strategic Operations often declined requests from ONE for information to guide its long-term strategic estimates—estimates that were used, in the early stages of the operation, to brief President Eisenhower [113, 114, 116].

Furthermore, the appendix highlights how traditional methods of intelligence analysis were subverted during TPAJAX.  Usually, unless there is a time-sensitive crisis and the executive needs immediate information, analysts put raw intelligence in context and consider the long-term strategic implications that ought to inform policies and decisions. Koch points out how, in the months leading up to the ousting of Mosaddeq, “rather than going to analysts, the ‘best clandestine reports were being hand-carried by top clandestine services people over to senior people in the White House, the State Department, and the Pentagon,’” while analysts saw “’mostly inconsequential scraps of information about foreign personalities’” [117].  Thus, filtering intelligence through the analytical wing of the agency was the exception rather than the norm during the planning and execution of TPAJAX.

John H. Waller, one of the senior Directorate of Operations officers involved in TPAJAX, whose interviews with the author of Zendebad, Shah! provide the basis for much of the analysis about the tensions between the operational and analytical wings of the agency.

One explanation for these tensions, Koch contends, lays “in differences between overt and covert employees” [117]. There was a sense among operatives (the covert employees) that analysts (the overt employees) may be more likely to leak classified information. Yet beyond concerns about the security of classified information, Koch discusses an intellectual and bureaucratic divide that he argues perpetuated the tendency to exclude analysts from the planning process of TPAJAX. He cites a 1995 interview with John Waller, one of the senior Directorate of Operations officers involved with the coup, in which Waller explains the divergent approaches to intelligence during TPAJAX: “…most Iranian specialists in the DDP were OSS veterans who spent substantial amounts of time in the Middle East. They had acquired their knowledge from practical experience and thought that knowledge acquired this way was superior to the academic knowledge many Directorate of Intelligence (DI) analysts prized” [117-118].

Koch also suggests a divide existed at an institutional level, writing that “DDP officers may have thought that if the DI were included in covert action planning, analysts would begin to challenge DDP’s preeminence in covert operations. Similarly, analysts may have feared that DPP operators would question their analytical preeminence and that close association with a covert action would raise questions about their intellectual objectivity” [118]. Thus, there seems to have been a set of bureaucratic norms about the roles of different actors within the agency that reinforced a culture of distrust between the analytical and operational arms and discouraged internal cooperation.

Despite these deficiencies, Koch argues that analytical exclusion had “negligible” consequences for the outcome of TPAJAX [120]. He points out that many analysts concluded that a coup attempt would fail, but that “…did not dissuade the President, the Secretary of State, and the DCI from executing TPAJAX” [120].  The administration, in Koch’s assessment, was committed to ousting Mosaddeq whether analysts thought it wise or not. If anything, he suggests that analytical exclusion harmed the intelligence product “because it prevented analysts from basing their judgments on complete information” [120]. Koch more specifically argues that if analysts were informed about the extent of the U.S. role in the developing political situation in Iran, they would have been “more inclined to recognize the operation’s potential for success” [120]. For example, “Mossadeq arrested Col. Nassiri, and the military challenge melted away. Headquarters wanted to call off the operation. Had the planning taken into account the possibility—even the likelihood—that segments of the Iranian military would react this way, DDP could have had contingency plans in effect instead of relying on Roosevelt’s improvisation” [120].

Shah Mohammed Reza Pahlavi of Iran and President Dwight D. Eisenhower – all smiles in the early years following the ouster of Prime Minister Mohammad Mosaddeq. (RFE web site)

In other words, coordination between analysts and operatives could have made the success of TPAJAX less random, inadvertent, and contingent upon the luck and circumstances of individual agents. This assessment is particularly notable in light of the events that took place in Guatemala just one year later.  In CIA historian Nick Cullather’s internal history of that operation, called PBSUCCESS, he concludes that the ousting of the Guatemalan leader Jacobo Arbenz was largely a consequence of good timing and good luck as opposed to the actual operational tactics and strategies employed by the CIA. It is interesting to think about how improving interagency coordination could have enhanced the execution of both TPAJAX and PBSUCCESS. In the case of Iran, Koch suggests that “The DI’s more scholarly and detached perspective and its methodology for assessing a dynamic situation perhaps could have helped NEA clarify the assumptions upon which TPAJAX was based, and how those assumptions might affect the operation” [120]. Perhaps normalizing communication and increasing coordination between operatives and analysts could have made the operation in Guatemala more direct and purposeful, as well. A major lesson Cullather imparts in his recounting of PBSUCCESS is that assumptions drive the tactical choices agents deem available to them, so if analysts had the most accurate intelligence, they may have come to more sound conclusions and consequently made operational choices that had a more direct impact on the desired outcome.

Koch concludes the appendix with a warning about the increasingly dangerous consequences of subverting the analytical process in intelligence.  He writes that “advances in technology have given today’s analyst access to an almost bewildering array of sources inconceivable to his colleague of 44 years ago,” and that the most up-to-date technologies are usually available to analysts but not operational planners [120].  In other words, planners rarely see all of the intelligence that is collected and must rely on analysts to filter through and contextualize information due to the sheer volume of intelligence made available through technology. Ultimately, Koch argues, these changes make “the consequences of ignoring analysis more serious today than was the case in 1953” [120].

Sen. Grassley Sums-Up Sunshine Week Sentiment, Says FOIA Posting Delays Don’t “Meet the Common-Sense Test”: FRINFORMSUM 3/15/2018

March 15, 2018

Senator Grassley tells OIP their explanation doesn’t pass the common sense test.

OIP’s Position Doesn’t Pass the “Common-Sense Test”

This week the Senate Judiciary Committee held a hearing on “The Freedom of Information Act: Examining the Administration’s Progress on Reforms and Looking Ahead.” The hearing consisted of one panel, all government witnesses – the Justice Department Office of Information Policy’s Melanie Pustay, the Office of Government Information Services Alina Semo, and the Government Accountability Office’s David Powner.

Pustay, predictably, reiterated OIP’s misleading FOIA statistics – citing a 90% release rate even though this number excludes a large swath of requests that are not processed for disclosure because the requests were denied for anything from fee reasons to referrals, and counts the release of merely one word as “a partial release.” Pustay also touted the newly unveiled- FOIA portal, although didn’t address the need for the portal to improve the processing of FOIA requests on the back end to live up to its potential.

Senator Leahy expresses disbelief at OIP’s insistence that 508 should hold up posting documents online.

Most of the eyebrow-raising moments came during the question and answer period, which saw senators underwhelmed by Pustay’s responses to their questions. At one point Senator Grassley told Pustay that her explanation for why the “release to one, release to all” policy had yet to be finalized (Pustay said “agencies have concerns about the time and resources it would take to properly code and upload documents online after a single request”) didn’t pass “the common-sense test.”

Pustay later dug in her heels by saying 508 compliance concerns –  a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities since 1998 – were a valid reason for agencies to hesitate posting documents online.

Senator Patrick Leahy disagreed, and failed to see how posting an OCR’d version of a PDF wasn’t a better alternative than posting nothing at all. The FOIA Federal Advisory Committee recommends that, instead of either not posting documents or even removing previously posted documents, agencies “remediate documents that are not currently 508 compliant—documents that have optical character recognition are also much easier for all individuals to search through and utilize,” and “ensure that their FOIA reading rooms include contact information that individuals with disabilities can use if they encounter inaccessible documents.”

Leahy also pushed back on Pustay’s claims that OIP has robust FOIA training and guidance program; saying “I don’t care about the robust training. The word robust has become the biggest misused cliché in government.”

GAO’s David Powner had an excellent observation towards the end of the hearing, particularly in light of OIP’s seeming ongoing unwillingness to compel agencies to follow the law. Powner told the committee that “If you don’t have the backing of the [Executive Office of the President] and the Office of Management and Budget, it’s very hard to get the right openness and progress moving the ball forward.”

NSArchive FOIA Audit Shows Agencies Struggling to Respond to FOIA Requests for Email

Two out of five federal agencies claimed that they were either unable or not required to respond to a targeted Freedom of Information Act (FOIA) request for agency emails submitted by the National Security Archive. The responses to the Archive’s FOIA request show that a year after agencies were required to manage email electronically, FOIA requesters are often not seeing the benefit of any improved email management.

The Archive’s Audit team filed the same FOIA request with all 100 federal agency FOIA offices that are required to submit an annual FOIA report to the Department of Justice’s Office of Information Policy. The request sought all emails received between January 20, 2017, through April 28, 2017, from any Republican National Committee domain, including but not limited to rnchq.org. The Archive wanted to see which agencies were receiving emails from rnchq.org email accounts in light of reporting that prominent members of President Trump’s administration were inappropriately using their RNC email accounts rather than their White House addresses.

Check out the posting at the National Security Archive for the audit results.

GAO Report: Agency FOIA Shops Need to Take Additional Steps

A recent Government Accountability Office (GAO) report, “Agencies Are Implementing Requirements but  Need to Take Additional Actions,” analyzed the extent to which 18 federal agencies have implemented six FOIA requirements. Specifically, GAO looked for whether the agencies had  1) updated response letters to inform requesters of the right to seek assistance from FOIA public liaisons, 2) implemented request tracking systems, 3) provided training to FOIA personnel, 4) provided online access to records, including frequently requested records, 5) designated chief FOIA officers, and 6) published updated FOIA regulations as required by the 2016 FOIA Improvement Act.

GAO found six agencies have yet to appoint a chief FOIA officer and only five had updated their FOIA regulations, noting that “Until these agencies address all of the requirements, they increase the risk that the public will lack information that ensures transparency and accountability in government operations.”

Regarding agencies’ growing backlogs the report also noted that agencies with the largest backlogs – which the agencies attributed to more and more complicated FOIA requests – that “these agencies lacked plans that described how they intend to implement best practices to reduce backlogs,” going on to say that “Until agencies develop such plans, they will likely continue to struggle to reduce backlogs to a manageable level.”

Secret Service and White House Win Rosemary Award for Worst in Open Government in 2017

The Secret Service and the White House have emerged as the dubious winners from the hard-fought competition for the Archive’s infamous Rosemary Award for worst open government performance of 2017.

The Secret Service clinched the 2017 award for its claim that “There is no system for keeping track of Presidential visitors at Mar-a-Lago.” This remarkable assertion was made in an October 4, 2017, court filing during the course of the National Security Archive’s Freedom of Information Act (FOIA) lawsuit seeking the Secret Service’s White House visitor logs, along with Secret Service records of presidential visitors at other Trump properties.

The award, which the Archive began bestowing in 2005, is named after President Nixon’s secretary, Rose Mary Woods, who testified she had inadvertently erased 18 and ½ minutes of a crucial Watergate tape when she stretched to answer the phone with her foot still on the transcription pedal. Previous Rosemary Award “winners” include the CIA, the Treasury Department, the Air Force, the FBI, the Justice Department (twice), and Director of National Intelligence James Clapper.

Read the rest of the posting and a list of runners-up for this uncoveted award here.

Sunshine Week Must-Reads

There have been quite a few good articles published this Sunshine Week on the state of FOIA and open government. A handful of them are:

Afghan War Info Released

The Special Inspector General for Afghanistan Reconstruction (SIGAR) recently published an addendum to its January report to Congress that provides the information that was withheld from the January report at the order of the Defense Department. Steve Aftergood notes that “The basic thrust of the new data is that Afghan government control of the country is at its lowest reported level since December 2015, while insurgency control is at its highest.”

Earlier this year the DOD ordered SIGAR not to publish the data – that was marked unclassified – on the war in Afghanistan, a move SIGAR called “troubling.” The DOD reversed course shortly after.

Air Force Secrecy

Defense News reports that the Air Force is restricting press access in a move the agency says is necessary for operational security; specifically the Air Force is “slashing access to media embeds, base visits and interviews as it seeks to put the entire public affairs apparatus through retraining.” The change was announced in a March 1 guidance and is the third such Defense Department guidance in the last 18  months to restrict communications with the public and “creates a massive information bureaucracy in which even the most benign human-interest stories must be cleared at the four-star command level.”

Prior to the release of the guidance the Air Force considered shutting down all press communications for 120 days.

Rep. Mike Gallagher, R-Wis., disagrees with the transparency backslide, saying “the department has it backwards. It is precisely because of the scale of the challenges before us that transparency is more important than ever. I worry that by failing to discuss problems, we will only ensure there is no public pressure to fix them.”

TBT Pick – CIA IG Report Exposes Torture as US Policy

This week’s #TBT pick is chosen with the nomination of Gina Haspel as the new CIA director (pending Senate confirmation) to replace Mike Pompeo in mind. Haspel, as outlined by the Archive’s John Prados, was involved in the agency’s torture program at a black site prison and in the destruction of evidence of waterboarding Abu Zubaydah. This week’s TBT pick is a 2009 posting – a side-by-side comparison of two very different versions of a 2004 report on the CIA’s “Counterterrorism Detention and Interrogation Activities” by Agency Inspector General John Helgerson; one released in 208 by the Bush administration and the other by the Obama administration in 2009. New revelations from the 2009 release include:

  • Details on a number of “specific unauthorized or undocumented torture techniques” not mentioned in the 2008 release, including the use of guns, drills, threats, smoke, extreme cold, stress positions, “stiff brush and shackles,” mock executions and “hard takedown.”
  • A look at the legal reasoning behind the Agency’s use of “enhanced interrogation techniques” and the development of Agency guidance on capture, detention and interrogation.
  • A brief discussion of the history of CIA interrogation, including the “resurgence of interest in teaching interrogation techniques” in the early 1980s “as one of several methods to foster foreign liaison relationships.”

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Forecast for Sunshine Week: Real, Structural Problems with FOIA Punctuated with Bright Spots and Reason for Optimism: FRINFORMSUM 3/8/2018

March 8, 2018

New FOIA.gov for Sunshine Week

The Justice Department just launched the new FOIA.gov to inaugurate Sunshine Week –  the national celebration of open government and freedom of information. Sunlight Foundation’s Alex Howard has a positive review of the new site (which Archive staff contributed comments and feedback for during its alpha phase), concluding “FOIA.gov is a sterling example of what people can build together, over time, when Congress mandates action in the wake of an agency not following through on an open government commitment.” Congrats to 18F for its hard work building the improved site, but it is important to note that the site will only live up to its full potential if agencies improve their searching and processing of requests on the back end.

Check out the new portal and let DOJ know what you think at National.FOIAPortal@usdoj.gov.

Other Sunshine Week events coming up in the D.C. area include:

A full list of events around the country can be found at SunshineWeek.org.

Archive’s 2018 Government-Wide FOIA Audit Coming Soon

The National Security Archive’s 17th Freedom of Information Act Audit is coming soon – with disappointing results of a government-wide survey intended to see how well agencies were searching email in response to FOIA requests.

An earlier series of Archive audits on agencies’ outdated FOIA regulations spurred Congress to mandate that agencies update their regulations within 180 days of passing the FOIA Improvement Act of 2016. (Our 2017 Audit showed that three out of five agencies didn’t update their FOIA rules in spite of Congress’ order to do so.)

In a metaphorical example of the state of FOIA, the EPA recently redacted a document using duct tape. Via Chris Horner

FOIA Still a Colossus. But Will it Thrive?

The Archive’s FOIA Project director Nate Jones has published a must-read article on the state of the Freedom of Information Act as we gear up for Sunshine Week. In the face of arguments that robust transparency is a bad thing, or that the FOIA is crippled and ineffective, Jones’ words speak for themselves:

While noting that it would be a lie if we didn’t acknowledge that FOIA faces real structural problems and ongoing agency efforts to weaken it, Jones argues that FOIA “is a colossus that makes national and local headlines daily, it proves that presidents lie, it tells citizens what their military and intelligence agencies are doing in their name.  But it is exactly because of FOIA’s success and potential that those who prefer secrecy attempt to weaken it both by overt attacks and by active neglect.  Despite this, I am optimistic about FOIA’s future.  It is a uniquely American law that provides us the power to force our government to disclose our secrets.  It will survive, but will it thrive?”

MuckRock: 9 Days of FOIA Exemptions and an Important Email Win 

MuckRock is winding up its countdown to Sunshine Week and Nine Days of FOIA Exemptions: a nine-piece series taking a closer look at each of the FOIA’s nine exemptions. The postings explain what the exemptions really mean behind the statutory language, spurious examples of their invocations, suggestions on how to appeal a particular exemption, and highlights useful additional resources – like FOIA Wiki. (I particularly liked Exemption 3 “No Homers” Day, but they are all worthwhile reading.)

And congratulations to MuckRock for an important win over the CIA in an ongoing FOIA lawsuit concerning the agency’s CREST database. The court found that the agency “can’t require you to know both who sent and received an email when requesting electronic records.” MuckRock is being represented pro bono by the National Security Counselors.

Confirmation of HUD FOIA problems

A second Department of Housing and Urban Development (HUD) official has confirmed that the agency under Secretary Ben Carson is processing politically sensitive FOIA requests “in a fashion different from the normal process” and that the FOIA office faces “undue influence” to handle them outside the normal process. The comments come from Marcus Smallwood and in support of Helen Foster – a HUD employee who made news last week after being demoted to the agency’s FOIA office; while there Foster raised the alarm that the office was understaffed and that she was prevented from handling FOIA requests submitted to the agency by the Democratic National Committee because a Trump appointee believed her a Democrat. “Smallwood accused Carson and senior Hud managers of reprisals against not only Foster for blowing the whistle on the furniture spending, but also of letting important business go uncompleted due to the interdepartmental feud.”

FOIA Suit Tackles HUD’s LGBT Housing Stance

A FOIA lawsuit is seeking information behind HUD’s decision to distance itself from LGBT homelessness and housing issues. The suit specifically seeks information on the agency’s decision under the Trump administration to remove a guide from its website that “provided training on how to provide transgender people equal access in homeless shelters” and why the agency cancelled two pilot programs to reduce LGBT homelessness and disengage from a study on LGBT housing discrimination.

New Findings on Clerical Involvement in the 1953 Coup in Iran

Senior Iranian clerics reportedly received “large sums of money” from U.S. officials prior to the August 1953 coup against Prime Minister Mohammad Mosaddeq, according to a contemporaneous British document located by researchers at the U.S. National Archives and recently posted in full for the first time by the Archive.

The Archive’s Iran Project also published a version of The Battle for Iran, one of three internal CIA histories produced about the coup.  Like the British memo, the document has been released before but with heavy excisions.  The CIA reviewed Battle again and declassified substantial portions of it in response to an Archive Mandatory Declassification Review request.

The role of clerics is one of the remaining unanswered questions surrounding Mosaddeq’s ouster.  More specifically, it is uncertain whether religious figures obtained funds from the West – and if so whether they knew the source of those funds.  The records provide further information on that and other topics, which will continue to be matters of intensive debate.

Archive Analysts in the News

The Archive’s Vietnam Project director, John Prados, recently published an excellent addition to The New York Times’ Vietnam ’67 project. Prados’ article – “Who Threw Westmoreland Under the Bus?” – is the story behind a major turn in the U.S. war effort – and the end of Westmoreland’s controversial tenure in the field – thanks to a “bus” driven by a combo of competing military priorities, presidential politics, bureaucratic obstruction, congressional umbrage, and growing public war-weariness.  All accelerated by critically important reporting by the news media.

Want to know what the U.S. government isn’t telling you about the “sonic attacks” in Cuba? Then check out Cuba Project director Peter Kornbluh’s latest installment for The Nation. The key takeaway about the attacks – which prompted travel warnings and led to a reduction in staff at the U.S. Embassy in Havana – is that the primary victims were CIA agents. Not a single tourist was affected, and the island remains among the safest countries in the world to visit. The article can be read here.

The Economist, analyzing what Kim Jong Un’s recent diplomatic efforts towards South Korea might portend, uses a recent Archive posting – Engaging North Korea II: Evidence from the Clinton Administration – to see what lessons can be drawn from earlier attempts at dialogue. The article, citing a declassified June 2000 cable from Stephen Bosworth wondering if talks would lower nuclear tensions on the peninsula or if the offer was a trap, finds: “it is always a mixed blessing when North Korea’s reclusive, murderous regime says that it wants to talk.”

TBT Pick – Agencies on Alert over Preserving Email

This week’s #TBT pick is chosen with the upcoming Sunshine Week in mind and is the Archive’s 2016 email alert, which analyzed agencies self-assessments about whether or not they were prepared to manage all of their email electronically by the December 31, 2016, deadline. Even through the rosiest-colored glasses of a self-assessment, three agencies admitted they wouldn’t meet the deadline, and one in six agencies didn’t even bother to turn it in.

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