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FOIA Request Seeks More Info on Citizenship Question for 2020 Census, and More: FRINFORMSUM 7/26/2018

July 26, 2018

Commerce Sec. Wilbur Ross. Win McNamee/Getty Images.

Emails Shed Light on Contentious Census Question

Redacted Commerce Department emails released as part of an ongoing lawsuit show that the Trump administration discussed adding a citizenship question to the 2020 census within months of Trump taking office. The 600-plus emails, which NPR has filed FOIA requests for to help peel back the redactions, contradict the administration’s earlier claims that the question was being added at the request of the Justice Department to better enforce the 1965 Voting Rights Act. The emails instead show that in May 2017 Steve Bannon, then President Trump’s strategist, tasked Commerce Secretary Wilbur Ross with talking “to someone about the census.” A month later, Secretary Ross’ aid “pledged to press Justice Department officials to say they needed better citizenship data for law enforcement.”

Interior Department’s “Inadvertent” FOIA Release Shows Bias Towards Developers in National Monument Battle

Emails released by the Interior Department in response to a FOIA request show that, during the course of a review of 27 national monuments that place the designated lands off limits to developers, agency officials “dismissed evidence that these public sites boosted tourism and spurred archaeological discoveries.” Comments made in the documents – which the Interior Department later retracted, arguing it had “inadvertently posted an incorrect version of the files” – show Interior Secretary Ryan Zinke and others “tailored their survey of protected sites to emphasize the value of logging, ranching and energy development that would be unlocked if they were not designated national monuments.” The department also dismissed analysis that the “existing restrictions had not hurt fishing operators and agency reports finding that less vandalism occurred as a result of monument designations.”

The FOIA release also shows the Interior Department did not plan to incorporate any material submitted though public comments to their regulatory proposals, as is typically the case. A DOI official says instead, “’barring a surprise, there is no new information that’s going to be submitted’ through the public comment process on the monuments review.”

Michel Camdessus, head of the IMF, looks on as Indonesian President Suharto signs an agreement in Jakarta (1998). AP Photo.

Twenty years after Suharto’s Downfall

Newly declassified records released by the National Security Archive show that the Clinton administration sought to preserve close ties to the Indonesian Armed Forces as President Suharto’s rule came to an end in May 1998, even as the Army carried out significant human rights abuses. Documents show that US officials were aware of the military’s involvement in kidnappings and disappearances of student activists going on at the time but saw preservation of the Army’s role as central to political stability in the country.

Get the whole story here.

How the New York Times Uses FOIA to Make Headline News (Hint: It Sues)

“In the case of Scott Pruitt’s E.P.A., were it not for FOIA, we certainly would not have been able to do as much as we did or tell the kinds of stories that we were able to tell.” This is according to New York Times’ climate and environmental policy reporter Lisa Friedman for an article on how the paper uses FOIA to break stories – which it (and others) did with such success in Pruitt’s case that he ultimately resigned.  The article underscores the importance of filing appeals and, increasingly, suing. Of the importance of lawsuits in FOIA’s news-breaking success, Times’ reporter Charlie Savage says, “FOIA is basically useless if you don’t file a lawsuit to force the government to act.”

City of Houston Issues Benchmark FOIA Indictment for Failure to Release Documents  

Darian Ward, the former press secretary for Houston mayor Sylvester Turner, was recently indicted by a grand jury for “violating state law by failing to turn over public records in response to a reporter’s request late last year.” The District Attorney’s office says Ward lied about the number of responsive records about Ward’s personal business activities – of which there were roughly 5,000 pages of emails – and unlawfully withheld the records. Many of the emails “dealt with reality shows she was pitching to television networks or a charity for which she served as an adviser.”

If convicted, Ward could face up to six months in jail or a maximum fine of $1,000.

USCIS’ FOIA System Raises Questions About Automation 

The U.S. Citizenship and Immigration Service is rolling out the next phase of its “Freedom of Information Act Immigration Records SysTem (FIRST) — a system that will ‘eventually’ allow requesters to navigate the entire FOIA process digitally.” USCIS announced that now requesters who file FOIA requests with the agency can expect a response to be emailed to them, although requests still need to be sent via fax, email, or mail. USCIS says that when the program is completed in September, “requesters will be able to use a completely digital FOIA/PA system, from online submission to retrieving and downloading responsive documents.”

The USCIS news comes on the heels of the decreased functionality of FOIAonline, which the site says is temporary. The USCIS announcement begs the question of why agencies are pursuing individual programs that are, in effect, individual agency FOIA portals, when the 2016 FOIA amendments mandates that there be a single, government-wide FOIA portal?

A Chief FOIA Officers meeting held on July 19 further addressed agencies’ growing interest in using automation to respond to FOIA requests and to reduce backlogs.

Time will tell how much automation will help, given that “new data from the Justice Department shows half of the agencies that receive the most open records requests saw their backlogs increase.” And because Chief FOIA Officers argue that “At the end of the day, a human needs to sit and review records, and make judgment decisions, and a computer can never do that,” it is unclear that more efficient technology would necessarily result in more common sense FOIA releases.

TBT Pick – U.S. Embassy Tracked Indonesia Mass Murder 1965

This week’s #TBT pick is a 2017 posting showing that the U.S. Embassy in Jakarta tracked had detailed knowledge that the Indonesian Army was conducting a campaign of mass murder against the country’s Communist Party. More postings from our Indonesia Documentation Project can be found here.

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OGIS Issues First Advisory Opinion, a Pattern and Practice Case to Watch, and More: FRINFORMSUM 7/19/2018

July 19, 2018

OGIS Issues First Advisory Opinion

The Office of Government Information Services (OGIS), the federal FOIA Ombuds office, issued its first advisory opinion this week. The substance of the opinion, which addresses agency communications with FOIA requesters, is useful if uncontroversial.

OGIS has had the authority to issue advisory opinions since its founding in 2007, and open government advocates have long urged it to use this potentially powerful tool. An OGIS blog post addresses the wait, noting “While we have had the authority to issue advisory opinions since our creation, prior to the passage of the FOIA Improvement Act, OGIS could only issue advisory opinions for individual disputes if mediation had not resolved the dispute.  For several years OGIS struggled with how to reconcile its authority to issue advisory opinions with its ability to be an impartial party that can facilitate the resolution of disputes between requesters and agencies.”

The National Security Archive is pleased to see that OGIS has begun using its statutory authority, and hopes this opinion is followed by many more that will deal with thornier issues of agencies systemically skirting FOIA requirements.

FOIA Pattern and Practice News

In a FOIA pattern and practice case brought by Judicial Watch that bears watching, the Court of Appeals for the District of Columbia remanded the case back to the District Court after the lower court ruled Judicial Watch “had failed to plead sufficiently egregious facts” in a suit seeking “an injunction that would make the Secret Service respond to future requests in a timely manner rather than make the group file litigation each time requests were made.” As Scott Hodes notes, “Up to this decision, pattern and practice claims in FOIA had to allege either agency misconduct or good faith agency error in interpreting FOIA exemptions.  Neither were alleged here, only the facts that the requester made requests, they were ignored until lawsuits were filed, and then the material was released.  The Court found these unexplained delays were enough to allow an inference of a practice of delay.  This ruling will allow the case to proceed at a lower level, where the Secret Service will now have to explain that its delays are not a pattern or practice unsupported by the FOIA.”

One of Kavanaugh’s Last D.C. Court of Appeals Rulings A Blow to FOIA Requesters

Jefferson Morley has a must-read article in the Intercept on SCOTUS nominee Brett Kavanaugh’s ruling in Morley’s long-running FOIA case, finding that Morley was not entitled attorney’s fees. The government is typically required to pay attorney fees when it loses a FOIA lawsuit, as it did in Morley’s case, in an effort to prevent agencies from capriciously denying records on arguments that wouldn’t stand up in court. But in this instance (the suit for attorney fees itself lasted an eyebrow-raising 8 years) Kavanaugh ruled against Morley, arguing that the FOIA request was for records of only “marginal” interest and that the CIA had acted “reasonably” in its response.

In her dissent, Judge Karen Henderson points out that the very same court had “previously determined that Morley’s request sought information ‘central’ to an intelligence committee’s inquiry into the performance of the CIA and other federal agencies.” Henderson also wrote that Kavanaugh’s opinion “ignored our mandate and misapplied our precedent, I would vacate the district court order a fifth time and remand with instructions to award Morley the attorney’s fees to which he is entitled.”

Amusing Archival FOIA Finds

War on the Rocks has a fun read on declassified documents from the Cold War that are – perhaps surprisingly – pretty funny (and a little unnerving). Several of the documents come from the National Security Archive’s vaults, including an interview conducted by the Department of Defense contractor BND Corporation with a senior Soviet military officer, Andrian A. Danilevich. In the document Danilevich recounts an early 1970s exercises that attempted to measure the consequences of nuclear first strike:

“During the exercise three launches of ICBMs with dummy warheads were scheduled. Brezhnev was actually provided a button in the exercise and was to ‘push the button’ at the appropriate time. Marshal Grechko was standing next to him and I next to Marshal Grechko. When the time came to push the button, Brezhnev was visibly shaken and pale and his hand trembled and he asked Grechko several times for assurances that the action would not have any real-world consequences. ‘Andrei Antonovich, are you sure this is just an exercise?’”

Recent Releases Shed Light on IC’s Reactions to Trump Tweets, Steele Dossier

BuzzFeed News’s Jason Leopold had a duo of interesting stories this week based on documents recently released in response to FOIA lawsuits.

One release shows that the Office of the Director of National Intelligence “deliberately concealed how the agency came into possession of a dossier prepared by a former British intelligence officer that alleged Russians had been ‘cultivating, supporting and assisting’ Donald Trump.”

The second release shows that Adm. Mike Rogers, former head of the National Security Agency, instructed his staff not to “get sucked in” to an exchange with President Trump after Trump lashed out against the Intelligence Community over Twitter after information was leaked to the New York Times. Rogers wrote, “Everyone needs to do their job and do in our normal professional and forthright manner. Our behavior will be driven by the standards of our profession and not the comments or views of others. No tit for tat pettiness from anyone at the NSA on this.”

FBI Morale Down for Some Reason

An FBI survey released in response to a FOIA lawsuit shows that morale at the bureau has dropped in the wake of James Comey’s ouster, “though satisfaction at the bureau remains high overall.” The FBI morale data had been released regularly since 2013 but was not published this year until researchers filed a FOIA suit. The question that resulted in the sharpest dive in the FBI Climate Survey is “I am inspired by the Director’s vision and leadership.” The data contradicts claims made by President Trump that he fired Comey because employees had lost faith in him (and previous data from FBI climate surveys showing Comey was widely respected at the bureau).

A History of US-Russian Negotiations

Our senior analyst and Russia expert, Svetlana Savranskaya, spoke with KPFA radio’s Letters and Politics about the history of US-Russian negotiations. Listen to the interview here.

Cyber Brief – Cyber Brief: GRU Cyber Operations

This week the Archive’s Cyber Brief is useful context for the indictment of 12 Russian intelligence officers for “engaging in cyber operations that involved the staged release of documents stolen through computer intrusions.” These cyber intrusions have come to be referred to as “Operation Grizzly Steppe.” This week’s brief explores the US Government’s public conceptualization of Russian cyber operations and highlights the two GRU units suspected of being directly involved: Unit 26165 (a/k/a Cozy Bear, APT29) and Unit 74455 (a/k/a Fancy Bear, Pawn Storm,  APT28).

#TBT Pick – Secret U.S. Overture to Iran in 1999 Broke Down Over Terrorism Allegations

This week’s #TBT pick is a 2010 posting highlighting declassified documents showing that a highly confidential US overture to Iran in summer 1999 foundered because the intelligence community and FBI believed members of Iran’s Revolutionary Guards had a role in the infamous Khobar Towers bombing of June 1996, and because US officials overestimated the Iranian president’s ability to manage the sensitive matter of US relations within Iran’s power structure. Get the whole story here.

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Kavanaugh Instrumental in Bad FOIA Ruling, Secrecy System Unsustainable, and Much More: FRINFORMSUM 7/12/2018

July 12, 2018

#TBT Pick – Kavanaugh Ruling Helped CIA Conceal Bay of Pigs History

This week’s #TBT pick is chosen with the recent nomination of Judge Brett Kavanaugh for Supreme Court Justice in mind. Kavanaugh authored the 2014 ruling in the National Security Archive’s prolonged FOIA lawsuit against the CIA that kept the agency’s 1984 Bay of Pigs Volume V history secret.  Kavanaugh, in a 2-1 ruling, agreed with the CIA and DOJ lawyers that the document was a “draft” and its release would “expose an agency’s decision making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency’s ability to perform its functions.” Archive Director Tom Blanton said at the time, “Presidents only get 12 years after they leave office to withhold their deliberations, and the Federal Reserve Board releases its verbatim transcripts after five years. But here the D.C. Circuit has given the CIA’s historical office immortality for its drafts, because, as the CIA argues, those drafts might ‘confuse the public.'”

Congress disagreed with the court’s overly-broad interpretation of the “deliberative process” privilege, and the FOIA was amended two years later to prevent agencies from hiding documents older than 25 years behind exemption five. Thanks to the change in the law, the Archive won the release of the volume in 2016.

Read more about the case here and read the volume here.

National Security Classification System Unsustainable

“We can and must reduce costs and increase efficiency by using digital technology to replace existing analog and paper-based operations. Our system keeps expanding, but remains hamstrung by old practices and outdated technology. We are at a crossroads.” This is according to the Information Security Oversight Office’s newly-released report to the president, highlighted by Steve Aftergood, which is a sobering assessment of the aging and unwieldy secrecy bureaucracy.

Key recommendations from the report include:

  • Using modern technology in security classification programs;
  • Implementing a budget line item that would require agencies to justify security classification expenditures; and
  • Adding a member of the public to the Interagency Security Classification Appeals Panel.

The National Geospatial Intelligence Agency wins special praise in the report for its best practice policy of requiring “written justifications for original classification decisions, along with a description of the damage that would result from unauthorized disclosure, and an unclassified paraphrase of the classified information.”

Also of note is the percentage of classification challenges presented by government employees that are upheld by the government – eight percent were upheld across the government. Aftergood notes, “Because the challenges are now mostly localized in just a few agencies, this practice has the potential to have far more impact in combating overclassification if it can be adopted and encouraged more widely across the executive branch.”

Jones’ Bill Would Circumvent FOIA to Declassify Civil Rights Cold Cases

Senator Doug Jones (D-Ala.) introduced a bill, the  Civil Rights Cold Case Records Collection Act of 2018, that would “create a panel to systematically review, declassify, and release government documents and information related to unsolved criminal civil rights cases from decades ago.” Jones argues that the bill would help shed light on important cases that agencies are too slow to release through FOIA; specifically, Jones says the legislation is needed because “the Freedom of Information Act (FOIA), as implemented, has prevented the timely and adequate disclosure of executive branch records, and congressional records are not subject to public disclosure under FOIA. In addition, some of these records, although almost 50 years old, remain classified unnecessarily or shielded from public view.”

In Brief – FOIAonline Takes a Turn for the Worse

The redesigned FOIAonline is … not good. The site has lost much of its functionality and is no longer mobile friendly. The Reporters Committee’s Adam Marshall has a good hot take here.

FOIA Plays Key Role In Pruitt Downfall – “The FOIAs have been 99.9 percent of it”

Environmental Protection Agency whistleblower Kevin Chmielewski was a key figure in the ouster of disgraced former agency head Scott Pruitt. Chmielewski, who was the EPA’s deputy chief of operations, leaked documents and provided fodder and guidance for FOIA requests, responses to which were critical in turning the tide against Pruitt.  “I’ve put the breadcrumbs where they had to go and pointed to the FOIAs — the FOIAs have been 99.9 percent of it,” Chmielewski said. “They’ve all come back, and in a lot of cases they were worse than I even knew about.” He called the FOIA releases the “silent hero” behind Pruitt stepping down.

Updates to the President’s Daily Brief Under Trump

Government Attic obtained records from the Office of the Director of National Intelligence under FOIA concerning new guidelines for the President’s Daily Brief for President Trump. One of the few unredacted portions of the records instructs the compilers to please limit the use of acronyms. It’s unclear if the president reads the briefs; the Washington Post reported in February of this year that the President has broken with the tradition of reading the highly sensitive document himself, and instead relies on oral briefings of the PDB.

Trump might actually not be the only president not to read the document. A 2016 Archive posting shows that President Richard Nixon may never have even read the President’s Daily Briefs, relying instead on cover memos written by national security adviser Henry Kissinger.

More on past presidents’ relationships with the document can be found on the National Security Archive’s website.

Cyber Brief: Transportation Security

This week the National Security Archive’s Cyber Vault brief focuses on the cyber threat to critical infrastructure (communication, transportation, energy, finance, and vital services), which receives a sizeable volume of attention from researchers and policy analysts. This week’s Cyber Brief collection of more than a dozen pertinent documents collectively examines transportation security in isolation beginning with President Clinton’s Executive Order 13010 and continuing through recent Federal reports on emerging challenges and technologies.

Presidential Control of Nuclear Weapons: The “Football”

Online blustering about nuclear “buttons” has brought new attention to the issue of presidential control over nuclear weapons, and to the special satchel or “Football” of emergency and nuclear planning information carried by White House military aides when the President is traveling. Declassified documents recently published by the National Security Archive describe the Eisenhower, Kennedy and Johnson arrangements for the “Football”; and the posting includes newly discovered White House photographs of six recent Presidents with military aides and Football nearby.

New Testimony Alleges that Former Colombian President’s Ranch Was Paramilitary Base

A ranch owned by former Colombian president Álvaro Uribe Vélez and other members of his family was the operational base of a deadly paramilitary group, according to the testimony of people who worked for the Uribe family in the 1990s. The new evidence, which was reviewed by the National Security Archive, is the subject of an investigation published this week in The New York Times featuring commentary from Michael Evans, director of the Archive’s Colombia documentation project.

Learn more about the declassified record on Uribe from our Colombia project.

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FBI Wants to Put FOIA Lawsuits on Ice until 2021: FRINFORMSUM 6/28/2018

June 28, 2018

FBI Tries to Put FOIA Lawsuits on Hold

The FBI recently told a government attorney that it is beginning to file “Open America” stays in “all FOIA lawsuits going” forward. This means, according to Jason Leopold, who brought attention to this alarming development, that “even if you sue the FBI, the bureau won’t process it until 2021.”

Courts can grant “Open America” stays when an agency demonstrates that “exceptional circumstances” exist and an agency can show that it “is deluged with a volume of requests for information vastly in excess of that anticipated by Congress [and] when the existing resources are inadequate to deal with the volume of such requests within the time limits of subsection.” Justice Department guidance importantly notes that, “The Electronic Freedom of Information Act Amendments of 1996 explicitly redefined the term ‘exceptional circumstances’ to exclude any ‘delay that results from a predictable agency workload of requests . . . unless the agency demonstrates reasonable progress in reducing its backlog of pending requests.'”

While the FBI argued the stays were necessary because of the bureau’s immense FOIA backlog, it’s not clear that the Open America stays would coincide with a concerted effort to clear the backlog.

Congress should use the FBI’s suspect position as an opportunity to investigate the extent to which the practice of staying FOIA lawsuits is employed at the Department of Justice and possibly other agencies, and what methods agencies are (or aren’t) taking to address their FOIA backlogs.

Financial Disclosure Form Reveals Potential Conflicts of Interest for new FTC Official

A FOIA request submitted by Public Citizen has won the release of Adam Smith’s financial disclosure form. Smith is the Federal Trade Commission’s new Bureau of Consumer Protection director, and the form raises serious questions about an array of perceived conflicts of interest. The form lists more than four dozen clients Smith worked with during his time at the corporate law firm Covington & Burling, among them were Uber, Equifax, and payday lender Scott Tucker, which was fined $1.3 billion by the FTC. Smith has also represented most of the nation’s large financial firms, including those fined for securities and consumer protection violations.

GAO Report: FOIA – Agencies Are Implementing Requirements but Additional Actions Are Needed

The Government Accountability Office has released a new report on FOIA implementation in response to a 2016 request from Congress to determine agencies’ compliance with the law. GAO selected the 18 agencies surveyed in the report based on size and other factors and assessed their performance against 6 metrics mandated by the FOIA. These metrics include online access to government information, including information about FOIA liaisons in agency communications with requesters, and training FOIA personnel. GAO recommends, in short, that agencies follow all of the FOIA’s requirements.

MuckRock’s Emma Best has a very good breakdown of the findings, as well as helpful commentary on how the official GAO findings square with requesters’ actual experiences, including:

  • The four agencies with the largest FOIA backlogs do not have plans to deal with them;
  • Agencies withheld information under the b(3) exemption by citing more than 230 statutes, but courts, as Ms. Best points out, have only upheld 75 of those statutes. The GAO report includes a chart citing which statutes have been upheld in court and which have not; and
  • The most commonly cited b(3) statute “related to withholding records pertaining to the issuance or refusal of visas to enter the United States. It was used by 4 agencies over 58,000 times.”

Focusing on the Intelligence Community’s FOIA Performance

A new report from OpenTheGovernment focuses on FOIA trends at the NSA, DIA, Army, Navy, CIA, and ODNI as compared to the rest of the federal government. OTG found that processing times for complex FOIA requests at these agencies are nearly three times longer than the government-wide average, and that the NSA and DIA’s processing times are worst of all at nearly 6 times the government-wide average.

Other key findings include:

  • The CIA rejects 4.35% of all FOIA requests – considerably more than other agencies – because of ongoing FOIA litigation;
  • FOIA litigation costs at CIA are more than at the NSA, DIA, Army, and Navy combined; and
  • The NSA and CIA fully denied about 40-percent of all FOIA requests on exemption grounds last year.

The OTG data begs a number of important questions, key among them being what is the rationale behind the CIA’s litigation-based denials, and what do the litigations costs reported in the agency’s annual FOIA reports actually cover?

New Digital National Security Archive Document Collection Highlights CIA Covert Operations from 1961-1974

Explore important historical events, like the epic Bay of Pigs disaster, through the lens of little-known or under-explored covert activities in the National Security Archive’s latest digital collection, CIA Covert Operations, Part III – From Kennedy to Nixon. This Digital National Security Archive (DNSA) collection, the most comprehensive of its kind, is the third of five installments concerning the bread and butter of U.S. intelligence operations – covert operations.

The new collection includes first-hand reporting on Che Guevara as he uttered his dying words in Bolivia, assassination attempts on Fidel Castro and Rafael Trujillo, dealings with secret agents and covert support for Kurdish rebels, and the CIA’s search for funds to bribe African dictator Jean-Bedel Bokassa of the Central African Republic.

Cyber Brief: Joint Publication 3-12

This week the Archive’s Cyber Vault highlights the updated Joint Chiefs of Staff Publication 3-12, first published on February 5, 2013. The following changes are prominent in the document:

  • Addition of USCYBERCOM as a combatant command and the creation of the cyber mission force.
  • Command and control for cyberspace operations are given deeper attention.
  • Information is reflected as a joint function.
  • Cyber operation planning is given deeper attention including intelligence and operational analysis support as well as targeting.

The Cyber Vault has a side-by-side view of both versions of the document to help readers compare versions and spot changes.

TBT Pick – U.S. Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick comes from our China Documentation Project and is a 2011 posting celebrating the publication of over 2,000 documents on the U.S. intelligence community’s efforts spying on China. The documents include a U.S. defense intelligence document from 2001 that details Chinese plans for developing radiofrequency weapons (although it stops short of speculating on their possible purpose).  Other records reflect on contemporary issues, like the risks of constructing nuclear power plants – like the Fukushima facility that exploded after the recent tsunami – at questionable sites in Japan.

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New Digital National Security Archive Document Collection Highlights CIA Covert Operations from 1961-1974

June 27, 2018

Explore important historical events, like the epic Bay of Pigs disaster, through the lens of little-known or under-explored covert activities in the National Security Archive’s latest digital collection, CIA Covert Operations, Part III – From Kennedy to Nixon. This Digital National Security Archive (DNSA) collection, the most comprehensive of its kind, is the third of five installments concerning the bread and butter of U.S. intelligence operations – covert operations.

The new collection includes first-hand reporting on Che Guevara as he uttered his dying words in Bolivia, assassination attempts on Fidel Castro and Rafael Trujillo, dealings with secret agents and covert support for Kurdish rebels, and the CIA’s search for funds to bribe African dictator Jean-Bedel Bokassa of the Central African Republic.

Virtually unknown before publication of this collection is the CIA operation against Prime Minister Cheddi Jagan of British Guiana. The documents show how the CIA stirred up economic trouble and labor unrest in Guiana while undertaking political action and propaganda to support an opposing politician handpicked by the U.S during the December 1964 elections.

Documents in this collection depict Cuban operations in particularly stunning detail. They help show that exile raids attacking Soviet merchant ships in the spring and summer of 1963 – as well as embarrassing sallies into Cuba – soured Washington enough to want to further disguise the American hand in Cuba. The documents chart the late 1963 decision by officials to re-orient the CIA’s anti-Cuba program to only support Cuban exile groups operating from outside the United States. After Kennedy’s assassination in November 1963, reporting on the continued infighting among Cuban exile groups, and their lack of impact on Cuba, President Johnson was finally convinced to halt the CIA’s Cuba program.

This set will also provide researchers with unprecedented coverage of deliberations of the CIA’s high command, ranging from minutes of the “Special Group” that approved covert operations throughout the world, to minutes of CIA directors’ daily staff meetings, to the notes of meetings with presidents Kennedy and Johnson that CIA Director John McCone took.

The two previous DNSA collections on CIA covert operations are: CIA Covert Operations: From Carter to Obama, 1977-2010 and CIA Covert Operations II: The Year of Intelligence, 1975.

If you don’t already have DNSA, sign up for a free trial today.

ISCAP Directed to Help with FRUS Volume Even Though Backlog at All-Time High, and More: FRINFORMSUM 6/21/2018

June 21, 2018

ISCAP Directed to Help with FRUS Volume

The Interagency Security Classification Appeals Panel (ISCAP), which is housed at the U.S. National Archives and charged with – among other things –  deciding on Mandatory Declassification Review appeals, held a forum today to discuss the current MDR landscape. Major takeaways from the meeting include:

  • ISCAP received a record-number of appeals in FY2017 – 577, and decided on 50.
  • ISCAP’s backlog has reached a record high of over 1,000 appeals.
  • The majority of documents ISCAP decided on (58%) were declassified in full.
  • Equity re-reviews continue to be the major factor slowing agency responses.
  • The Archive’s William Burr gave an excellent presentation of the history, success, and shortcomings of the MDR process.
  • 23 agencies have submitted their Declassification Guides and ISCAP is working with agencies to revise their guides before approval.
  • A May 23, 2018 memo from the National Security Advisor to ISCAP has triggered 32 C.F.R. Part 2003.15, directing ISCAP to assist with the declassification of documents for the State Department Foreign Relations of the United States volume on national security policy. This begs the question of why the State Department can’t perform the task itself and if, given ISCAP’s growing backlog, this is an effective use of resources.

DHS Not Investigating Abuse Claims

A FOIA request filed by Motherboard won the release of documents showing that in 2017 “the US Department of Homeland Security did not investigate hundreds of civil rights complaints about alleged detainee, prisoner, or suspect abuse filed to the agency’s oversight body.” The documents do not differentiate between the numerous DHS components, which include Immigration and Customs Enforcement and Customs and Border Protection. The overwhelming majority of cases cited in the DHS Inspector General report are marked “closed not converted,” which, as explained in an ACLU lawsuit by the court, means “virtually no investigations into the complaints took place, or at least were completed.”

Troubling CT Law Targets “Vexatious” Requesters

Connecticut recently passed a problematic law that would allow an agency to refuse to respond to a FOIA request or appeal if the state Freedom of Information Commission determines the request or requester is “vexatious.” The law allows the state agency or municipality to ignore the requester for a year. State Senator Toni Boucher (R) said the law was necessary “because there have been a number of individuals who have filed voluminous FOIA requests with the general assembly, public agencies, and municipalities.” The weak explanation ignores the myriad of ways the legislation could be abused to deny public access to official records.

The bill, which passed unanimously, was supported by municipal organizations like the Police Officers Association of Connecticut, as well as the Connecticut Society of Professional Journalists.

Thanks to Mike Morisy for drawing attention to this law.

Agency Records Stored at NARA Federal Records Centers are Still Agencies’ Responsibility

A helpful blog from the U.S. National Archives’ Office of Government Information Services (OGIS) reminds agencies that their records stored in any of NARA’s 16 Federal Records Center are still the legal custody of the agency and must be searched by the agency in response to a FOIA request.

The blog highlights the important difference between when a record is “accessioned” to NARA – a process that only happens if the record is determined to have permanent historical value as identified in an agency’s records retention schedule – versus when a document is stored in a NARA facility (which is much more frequently the case). As NARA points out, if an agency receives a FOIA request for records stored at an FRC, “It is incumbent on that agency to contact NARA and request access to those records. That agency is required to review and process the records, and respond directly to the requester. NARA’s role is limited to assisting the agency with retrieval of the responsive records.” Many agencies appear not to be aware of this responsibility.

Here is the list of all the Federal Records Centers.

FOIA Confirms DOJ Not Reporting to Congress on State Secrets Usage

A FOIA request shows that the Justice Department had little appetite for following then-Attorney General Eric Holder’s 2009 instructions for the DOJ to regularly provide volunteer reports to Congressional oversight committees concerning the government’s invocation of the state secrets privilege. The first report was produced in 2011, but as Steve Aftergood notes on the Federation of American Scientists’ Secrecy News blog, it was also the last. A FOIA request for any subsequent reports received a “no records” response.

An earlier FOIA request from Aftergood for the Attorney General’s written responses to questions from the House Judiciary Committee following a June 7, 2012, hearing shows that “A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose.” The DOJ did note that the Attorney General had invoked state secrets privilege in six known cases between 2009 and 2013 – including Gen. Petraeus’s use of the privilege while head of CIA in an employee discrimination case, which is not widely considered a state secrets case.

More information and resources on the state secrets privilege can be found here.

Cyber Brief: Federal Ban on Kaspersky Products

This week’s Cyber Brief includes the guidance implemented by the Department of Defense, General Services Administration, and NASA for the ban on Kaspersky products mandated in the 2018 National Defense Authorization Act. The relevant NDAA section is accompanied by a DHS directive to identify and remove Kaspersky products from Federal systems within 90 days, and court documents from a lawsuit in which Kaspersky alleges that the DHS unfairly blocked its software from Federal systems based on unsubstantiated evidence.

TBT Pick – The Taliban File Part III

CIA poster on “Afghanistan’s Key Players,” circa 2001.

This week’s #TBT pick is a 2004 posting showing the State Department reporting that Pakistan provided millions of dollars, arms, and “buses full of adolescent mujahid,” to the Taliban in the 1990s. The posting includes a March 9, 1998 cable on a meeting between the US Deputy Chief of Mission Alan Eastham and a source who appears to be Pakistan Foreign Ministry official Iftikhar Murshed, who for the first time admitted that Pakistan provided arms supplies to the Taliban.

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NDAA Includes More Unnecessary B3 Exemptions, What Happens to the Records Trump Destroys at His Private Properties, and More: FRINFORMSUM 6/15/2018

June 15, 2018

NDAA Includes More Unnecessary B3 Exemptions

The current version of the National Defense Authorization Act contains four proposed (b)(3) exemptions that will prevent the public from knowing information it should have access to. (B)(3) is an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has closer to 250including one about watermelon production data. Statutory exemptions give the DIA, NSA, DOD components, and others far more leeway to hide information than other agencies.

The (b)(3)s included in the latest NDAA include the Cyberspace Solarium Commission, providers of information technology products and services who have obligations to foreign governments, the Defense Department’s registry of disclosures, and the export control enforcement authority.

Information that should be public will likely be hidden as a result of the proposed (b)(3) exemptions, and the information that the exemptions are rightfully trying to keep secret could be withheld under existing exemptions to the FOIA (probably (b)(1), (b)(5), and (b)(7)) rendering the proposed exemptions an unnecessary and harmful impediment.

NARA Can’t Stop the President from Destroying Official Records, Forcing Staff to Tape them Back Together – Begging Questions About Records Destroyed at Trump Properties

News broke this week that President Trump has a habit of ripping up his papers once he’s done with them, meaning that White House records management specialists charged with preserving federal records have to puzzle the documents together with scotch tape. Unable to disabuse the President of his habit of destroying documents, “Staffers had the fragments of paper collected from the Oval Office as well as the private residence and send it over to records management across the street from the White House for Lartey and his colleagues to reassemble.”

The National Archives maintains that it has no role enforcing the President’s records keeping actions and that it can only provide guidance.

The issue is concerning enough in Washington, but raises larger questions about what happens to official records that the President destroys at his private residences far from DC – where he spends months of the year and where there are no records keeping officials taping them back together at the end of the day.

NDC Seeking New Director 

NARA’s National Declassification Center, stood up in 2010 and charged with coordinating declassification practices across agencies and reviewing records already in NARA’s custody for declassification, is seeking a new director. Founding director Sheryl Shenberger is stepping down after an eight year stint, and the job is open to both government and non-government employees. The Archive has been one of NDC’s frequent critics, but has been pleased to see the direction the NDC has taken over the last few years, most especially the introduction of its indexing on demand program in 2015, which allows the public “to select specific entries that the National Declassification Center (NDC) should prioritize for release.” Hopefully NDC’s next director will continue working to use the Center to declassify as much government information as possible.

John Kelly Warned about FOIA “in the Cesspool”

Documents obtained by Jason Leopold and Buzzfeed in a FOIA lawsuit show President Trump’s chief of staff, John Kelly, had an adversarial relationship with FOIA during his tenure as head of the Department of Homeland Security. In one email instructing someone (it’s unclear if the person is a DHS employee or private citizen) not to email, Kelly says, “FOIA is real and everyday here in the cesspool, and even federal court action on personal accounts is real.” At the time most of DHS’s focus was on immigration. Kelly later explained that he wanted the individual to stop emailing because the DHS employees who voted for Hillary Clinton in the 2016 election “find some of the postings offensive” – although the “cesspool” email also warned the recipient about the danger of leaks, and cautioned the person to be careful, “infinitely more than you had to in the past.”

The documents also confirm that Kelly’s personal email had been hacked, and that Kelly started conducting most business by phone and face-to-face meetings as a result.

FOIA Suit for Documents in Kushner-led Office Continues

The Office of American Innovation, an office set up by the Trump administration to reduce the size of the federal bureaucracy and maintained within the White House and led by Jared Kushner, should accept and process FOIA requests – this according to an ongoing FOIA lawsuit brought by Democracy Forward and Food & Water Watch. This week the plaintiffs filed a brief in federal district court challenging the administration’s position that the office exists only to advise the president, and is therefore exempt from FOIA. Plaintiffs argue that the office launches initiatives, implements programs, and imposes duties on government agencies, and therefore is not exempt.

There are currently six Executive Offices of the President subject to FOIA: the Office of Management and Budget, the Council of Economic Advisers, the Office of National Drug Control Policy, the Council on Environmental Quality, the US Trade Representative, and the Office of Science and Technology Policy.

The White House Office of Administration was subject to FOIA until a 2015 Obama-era rule exempted the office from FOIA.; while the rule was issued during the Obama administration, the office stopped complying with FOIA requests during the Bush administration.

Other EOPs, like the National Security Council, have been found by courts not to be subject to the FOIA.

IRS Needs 13 years to Search Email of 165 Employees

A federal judge in the U.S. District Court for the District of Columbia rejected Cause of Action’s challenge to the IRS’s motion for summary judgement in a FOIA suit seeking documents concerning the Craig memo – a 2009 memo from White House Counsel Gregory Craig instructing “all federal agency and department general counsels to consult with the White House on all document requests that may involve documents with ‘White House equities.’” (What constitutes White House equities remains vague.)

The case also sheds light on agencies’ ongoing inability to search email. The IRS informed Cause of Action during the course of the suit that it had no responsive records. Cause of Action argued that the IRS’s search was unduly narrow – in no small part because the agency didn’t conduct a search of employee email accounts, arguing it would be too burdensome. The IRS argued, for instance, that “would take one IRS IT person at least 13 years . . . to capture all of the emails of the[ ] 165 employees” in one IRS bureau alone.

The judge, finding there to be no disagreement on the material facts of the case, sided with the IRS.

The National Security Archive’s 2018 FOIA audit reveals that the IRS isn’t alone in claiming it can’t search emails in response to FOIA. Far too many FOIA shops do not consult with IT personnel to see if it is possible to search email before denying a request, only conceding to do so once confronted with an appeal.

McCabe Lawyer Argues DOJ Withholding Documents Makes It Impossible for McCabe to Defend Himself

Attorneys for fired FBI deputy director Andrew McCabe are filing a FOIA lawsuit, arguing that the Justice Department is withholding documents necessary for “defending him in connection with the misconduct allegation that led to his dismissal in March.” The suit specifically seeks manuals and policies used by the DOJ, the Inspector General’s office, and the FBI in carrying out both investigations and employee discipline. “McCabe’s attorney’s suit says that most or all of the policies at issue should be publicly available online or in agency reading rooms open to the public, but Justice officials have rebuffed requests for the documents.”

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