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FOIA Details Pruitt’s Deep Industry Ties, Costly Security Detail: FRINFORMSUM 10/5/2017

October 5, 2017

FOIA Details Pruitt’s Deep Industry Ties, Costly Security Detail  

A FOIA request from American Oversight has won the “most detailed look” to date at Environmental Protection Agency (EPA) chief Scott Pruitt’s schedule. The 320-pages reveal the daily schedule for Pruitt’s first three months in office (February through May); included on the schedule is an ongoing string of meetings with executives and lobbyists from, among other companies, Shell, chemical maker Chemours Company, coal-burning utilities company Southern Company, coal-mining powerhouse Alliance Resource Partners, General Motors, and the Family Research Council (whose mission is to “advance faith, family and freedom in public policy and the culture from a Christian worldview”). The schedule also shows that Pruitt took several flights home to Oklahoma and made time for “long stretches of downtime,” but took “almost no meetings with environmental groups or consumer or public health advocates.”

The disclosure adds to previous FOIA releases by showing, for the first time, “a description of the topics discussed at each of the meetings, and a list of all the agency officials and corporate executives scheduled to attend.” The New York Times reports, “The newly released documents, for the first time, create a direct link between Mr. Pruitt’s meetings and actions that the industry wants him to take.”

Comparing Pruitt’s records with his predecessor under President Obama, Gina McCarthy, also shows that Pruitt spends considerably less time “meeting with E.P.A. professional staff and other federal government officials.”

FOIA requests to the EPA have also helped shed light on how much Pruitt’s protective detail costs; specifically, they show that Pruitt’s detail costs twice as much as his predecessors, and that “the EPA spent $832,735.40 on Pruitt’s protection detail for the three-month period.” The 24-hour security also requires three-times as many people as previous EPA heads, and has forced agency officials to rotate special agents who would normally investigate environmental crimes, something never before seen.

FOIA Request Seeks Info on Scrapped Equal Pay Rule

The National Women’s Law Center and the Lawyers’ Committee for Civil Rights Under Law are leading a coalition of more than 90 other organizations in a FOIA request to the Office of Management and Budget for information on “the Trump administration’s decision to halt an Obama-era initiative aimed at fighting employer discrimination against women and minorities.” The central question “is whether officials talked to equal-pay advocates or conducted meaningful research before shutting it down” and whether the legal standards to block the measure were met.

The request concerns a rule the Trump administration froze in August “that would have required companies to file data broken down by race, ethnicity and gender on what they pay workers” that was finalized last September and would have been implemented this year.

Overturned OLC Memo Says Presidents Can’t Hire Relatives

A Politico FOIA request won the release of recently-overturned Department of Justice Office of Legal Counsel memos issued to the Nixon, Carter, and Reagan administrations that concluded presidents “cannot appoint their relatives to the White House staff or presidential commissions, even to unpaid posts.” The OLC found that doing so would be illegal under a 1967 anti-nepotism law.

In January, at the request of the Trump administration, Justice Department attorney Daniel Koffsky “concluded that another law, passed in 1978, conferred broad authority on the president to appoint White House officials essentially overrides the earlier anti-nepotism measure.”

Josh Gerstein notes of the OLC release, “In a letter accompanying Monday’s release, OLC attorney Paul Colborn said most of the memos were covered by attorney-client privilege or executive privilege applicable to advice rendered to the president or his aides. Colborn said the Justice Department was releasing the opinions ‘as a matter of discretion.’”

ICE FOIA Library Down

MuckRock’s Emma Best recently pointed out that U.S. Customs and Immigration Enforcement took down its FOIA library on October 3 “for review.” As of writing this, the site, which houses, among other things, the agency’s FOIA reports that ICE is required to make public under the Electronic Freedom of Information Act Amendments of 1996, is still down.

It is hard to imagine that a legitimate reason why a review of ICE’s FOIA library would require it to be taken offline. The National Security Archive will be watching.

Treasury IG Says FOIA Needs Improvement

The Treasury Department’s Inspector General for Tax Administration has determined the IRS needs to improve its FOIA processing, and that the IRS “improperly withheld information 14.3 percent of the time—or approximately 1 in 7 FOIA requests.” The report can be read here.

The National Security Archive maintains a list of oversight reports, including IG and GAO reports on agencies compliance with the FOIA. The list of over 80 reports can be found here; if we are missing any, let us know and we will add them.

FBI Can Keep Secret How Much it Paid for iPhone Hack

A federal judge has sided with the government, ruling in a FOIA case brought by USA Today, The Associated Press, and Vice, that the FBI does not have to disclose how much it paid to unlock the iPhone used by one of the San Bernadino shooters that left 14 people dead, or who it paid to do it. (Former FBI director Comey hinted that it was more than $1.4 million.) U.S. District Court Judge Tanya Chutkan ruled that the identity of the firm is properly classified and constitutes intelligence sources or methods; she found that the amount constituted confidential law enforcement techniques or procedures.

The Archive’s Peter Kornbluh Inducted Into Order of Bernardo O’Higgins

The National Security Archive’s senior analyst, Peter Kornbluh, has been inducted into “the order of Bernardo O’Higgins.” Chile’s Ambassador Juan Gabriel Valdes presented the award, which the Chilean government gives to foreigners who have made a special contribution to Chilean society, during a Sunday ceremony at the Chilean Embassy.

In presenting the award, Ambassador Valdes recognized Kornbluh’s leadership role in decades of efforts to obtain the declassification of secret documents on the coup and the Pinochet regime. In his acceptance speech Kornbluh noted that the documents were invaluable to “speaking truth to power” because there “was no better way to reveal the truth than to reveal the words those in power spoke and wrote.”

Cyber Vault: DOD’s Information Operations Condition 

A 1999 Joint Chiefs of Staff memo – that was recently released to the National Security Archive in response to a Freedom of Information Act (FOIA) request – establishes a framework for responses to attacks on DoD computers and telecommunications. It is unclear if the INFOCON is current, but it is a valuable glimpse into the information warfare response at DoD regardless.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, October 4.

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FOIA Shows Immigration Judges Reassigned to Border Lack Work While Backlog Grows at Home: FRINFORMSUM 9/28/2017

September 28, 2017

FOIA Shows Immigration Judges Reassigned to Border Lack Work While Backlog Grows at Home

Guillermo Arias/AFP/Getty Images

A FOIA request to the Justice Department’s Executive Office of Immigration Review (EOIR) shows that a Trump administration initiative to speed up deportations by sending more than 100 of the country’s roughly 300 immigration judges on short-term missions to the U.S.-Mexico border has both increased the U.S. immigration court backlog and left many judges on these short-term assignments with little to do.

The FOIA request, filed by the National Immigration Justice Center (NIJC), won memos that detail the delay of “more than 20,000 home court hearings for their details to the border from March to May.” The immigration backlog has grown during the Trump administration from 540,000 cases to 600,000, although NIJC is careful to note that the Trump administration has not necessarily worsened the backlog.

Attorney General Jeff Sessions unveiled the DOJ’s judge relocation program in Nogales, Arizona in April, characterizing the relocations as a necessary surge. The program seeks to relocate judges handling “non-detained” immigration cases “to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation.” Many judges found that, once re-located, there was not nearly enough work to fill their dockets, or the centers were not equipped to accommodate in-person hearings for a variety of reasons, including lack of internet and phone lines.

Politico reports, “Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions.”

FOIA Shows How No Fly Zone Was Established Over Standing Rock

A FOIA request to the Federal Aviation Administration won Motherboard “nearly 100 pages of emails between the FAA and federal, state, and local officials” highlighting the Morton County Police Departments efforts to quash protesters use of drones during last year’s Dakota Access pipeline protests by having the federal agency declare a temporary flight restriction (TFR) for the area. Footage taken by the drones – operated by Indigenous pilots and journalists – showed an “armored vehicle launching percussion grenades into the crowd; water cannons being fired at civilians; and continued pipeline construction after dark.” The FAA issued the TFR “ostensibly because law enforcement officers on the ground were telling the agency that drones presented a persistent threat to police helicopters and police on the ground. However, several of the events cited in emails to the FAA did not occur as described, and an Indigenous journalist who was arrested for flying drones at Standing Rock was later exonerated based on video evidence he presented in court.”

Judiciary Dems Want More on FOIA Release Concerning Trump Election Commission

Senate Judiciary Committee Democrats are again asking the Justice Department for information on a number of controversial topics the DOJ’s Civil Rights Division is involved in, including President Trump’s election fraud commission headed by Kansas State Secretary Kris Kobach (an interesting read on Kobach’s attempts to evade Kansas’ FOI law by claiming he is acting on the commission as a private citizen and not a state official can be found here). The Senators specifically seek more information from a DOJ FOIA response to the Campaign Legal Center that reveals “a February email that was forwarded to Attorney General Jeff Session from a conservative activist, who was later appointed to the commission, demanding that Democrats and even ‘mainstream’ Republicans not be selected for the panel.” The letter can be read here.

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

OMB Still Hasn’t Updated 1987 FOIA Fee Guidance

The National Security Archive has submitted comments to the Fourth United States Open Government National Action Plan (NAP 4), urging the Office of Management and Budget to update its 1987 fee guidance, which is three decades outdated and missing a key word. The recommendation was initially made to OMB in April 2016 by the federal FOIA Advisory Committee, but OMB has yet to take any visible action, and FOIA fees remain a contentious and confusing issue for many FOIA requesters. The National Security Archive’s recommendations can be read here, and you can submit your own recommendation here.

U.S. Considered Using Nuclear Weapons Against N. Korea in 1969

The escalating bellicose rhetoric between the United States and North Korea has a number of observers revisiting both “The Long History of North Korea’s Declarations of War” and the 1969 North Korean shoot down of an American EC-121 spy plane flying off the coast of the peninsula. The attack killed all 31 crew members and forced President Richard Nixon, and his National Security Adviser Henry Kissinger, to make a difficult decision about how to respond to Pyongyang. The National Security Archive’s Korea Project director, Dr. Robert Wampler, told NPR in 2010 that declassified documents won through the FOIA showed that the Nixon administration struggled to identify an adequate response. Wampler said: “The U.S. did not have a very good menu of options when this happened, which sort of constrained them in their ability to pick and choose amongst something that would work, and also contain the situation… The military produced the options, ratcheting up the level of military force all the way to all-out war and to using nuclear weapons. But constantly you find the military saying, ‘But the risks probably still outweigh the potential gains.'” See “How Do You Solve a Problem Like Korea?” for more on the declassified documents.

National Security Agency Tracking of U.S. Citizens – “Questionable Practices” from 1960s & 1970s

The National Security Agency’s (NSA) own official history conflated two different constitutionally “questionable practices” involving surveillance of U.S. citizens, according to recent NSA declassifications recently published by the National Security Archive.

During the mid-1970s, the U.S. Senate’s Church Committee investigated a number of such “practices” by NSA, including the so-called Watch List program, which monitored the international communications of anti-Vietnam war activists and other alleged “subversives,” and the NSA’s creation of a voluminous filing system on prominent U.S. citizens. Ultimately the filing system, and corresponding indexes, surpassed 1,000,000 names, including 73,000 U.S. citizens.

The Agency’s history mistakenly folded in the NSA’s filing system on U.S. citizens into the Watch List, thus incorrectly stating that Senator Howard Baker and journalists Art Buchwald and Tom Wicker, among others, were on the Watch List. New documents that the NSA has released to the Archive through a mandatory declassification review appeal provide an important corrective to the Agency’s official history.

Oil on canvas by Commander E.J. Fitzgerald, January 1965. It depicts the engagement between USS Maddox (DD-731) and three North Vietnamese motor torpedo boats on 2 August 1964.

TBT Pick – The Gulf of Tonkin

This week’s #TBT pick is chosen with Ken Burns and Lynn Novick’s new documentary, The Vietnam War, in mind. This week’s pick is a 2004 posting by Archive Senior Analyst John Prados on the 40-year-anniversary of the Gulf of Tonkin and how flawed intelligence influenced the decision to escalate the war. Prados notes, “President Johnson and top U.S. officials chose to believe that North Vietnam had just attacked U.S. destroyers in the Gulf of Tonkin, even though the highly classified signals intercepts they cited to each other actually described a naval clash two days earlier (a battle prompted by covert U.S. attacks on North Vietnam), according to the declassified intercepts, Johnson White House tapes, and related documents.” The compilation of signals intercepts, which were only declassified in 2003, and audio files and transcripts of the key Tonkin Gulf conversations between President Johnson and Defense Secretary Robert McNamara, among other key resources, can be found on the National Security Archive’s website.

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Congress Surreptitiously Undermines FOIA, Private Property Threatened by Border Wall, and More: FRINFORMSUM 9/21/2017

September 21, 2017

Congress Surreptitiously Undermines FOIA

Congress is not subject to the Freedom of Information Act (FOIA) and members of congress are under no obligation to make their records public.

But congressional communications with the Executive Branch agencies they are tasked with overseeing are subject to FOIA. Justice Department Office of Information Policy guidance makes clear that “documents conveying advice from an agency to Congress for purposes of congressional decisionmaking are not ‘inter-agency’ records under Exemption 5 because Congress is not itself an ‘agency’ under the FOIA.”

Yet members of congress, just a year after passing bipartisan reforms to strengthen the Freedom of Information Act, appear to be trying to tell agencies to ignore DOJ guidance and existing case law.

The Columbia Journalism Review notes, “In April, for example, the Republican chair of the House Financial Services Committee, Rep. Jeb Hensarling, fired off letters to a dozen government agencies, warning that all correspondence with his committee should be exempt from FOIA. And in May, BuzzFeed reported that the House Ways and Means Committee had taken similar steps to shield its correspondence with the Centers for Medicare and Medicaid Services.”

The House of Representatives’ general counsel also recently argued in court that documents originating from the congress and released in response to a FOIA lawsuit should not have been released, saying that “releasing correspondence between Congress and federal agencies could ‘impair’ Congressional scrutiny.”

This is a giant step backward from a Congress that purports to support transparency. Nate Jones, the National Security Archive’s FOIA Project Director, says of Congress: “They’re trying to do this secretly, and they think the public’s not gonna care they’re attempting to eviscerate the Freedom of Information Act. We have to expose it, and make sure it doesn’t happen in a cigar-filled room but in a public forum, and that constituents know what their representatives are doing and tell them to stop doing it.”

In December 2014 Jones penned a blog on “What We Can Learn from the Death of a Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government” that is a timely re-read.

Public Records Show How Much Private Property Threatened by Potential Border Wall

USA Today reporters undertook a massive effort to understand what it would take to build a border wall along the U.S.-Mexico border, one of President Trump’s signature campaign pledges. The international border is just under 2,000 miles, more than half of which is in Texas.

The debate in Texas is particularly complicated. The Rio Grande serves as the natural border between the U.S. and Mexico, meaning any structure would have to be built somewhat inland – and in Texas, this largely means on personal property. USA Today reporters took advantage of the state’s public records law to see just how complicated this issue might become. They found that a wall would run through 4,900 parcels of private property that abuts the border.

In 2006 the federal government brought more than 300 condemnation cases against private landowners in Texas to build the portions of the border fence that currently exist in the state. Nearly a third of those cases are still in litigation.

Reporters are also using FOIA to track down prototype designs of the wall that are slated to be built near San Diego. Several organizations, including American Oversight and the Center for Biological Diversity, have already sued the Department of Homeland Security under the FOIA for records related to the prototypes.

Trump Hides Mar-a-Lago Visitor Records

Yesterday the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW), filed a court motion asking “the Court issue an order requiring the government to show cause for its failure to comply with its court-ordered obligation to produce all responsive and non-exempt Mar-a-Lago records.”

The Department of Homeland Security last week released exactly two pages of Mar-a-Lago presidential visitor records in response to our FOIA lawsuit. The only document the government released concerns the visit of Japanese Prime Minister Shinzo Abe – this after telling Judge Failla and the plaintiffs that DHS would produce all the visitor records.

“The government misled the plaintiffs and the court,” commented the National Security Archive’s Director Tom Blanton. “I can only conclude that the Trump White House intervened and overrode career lawyers.”

FEMA Nominee Withdraws

The Project on Government Oversight has a good read on former Federal Emergency Management Agency (FEMA) official Daniel “Dan” Craig. Craig was tapped by President Trump to be the FEMA Deputy Administrator, but he – “likely facing many hurdles during his Senate confirmation hearing” – withdrew his nomination last week. POGO has been following Craig’s FEMA role for years, dating back to his awarding of sole source FEMA housing contracts after Hurricane Katrina that were “the subject of numerous reports of wasteful spending.”

POGO’s Scott Amey notes:

“As part of an investigation into those FEMA housing contracts, POGO submitted a Freedom of Information Act (FOIA) request to DHS in August 2006 (and a subsequent FOIA appeal in 2016) for any communications between Craig and the four companies that each received a $500 million non-competitive contract: Shaw GroupFluor Corp.Bechtel National Inc., and CH2MHill—all of which were companies where Craig had reportedly sought employment.

Finally, after 11 years, the DHS IG supplied the previously nonpublic report from 2007 to POGO. That report and its exhibits highlight Craig’s employment negotiations with two of the four sole source FEMA housing contractors—Fluor and the Shaw Group—the latter of which was a client of Craig’s post-FEMA employer.”

Michigan State and Reverse-FOIA Laswuits

Michigan State recently lost its second reverse-FOIA lawsuit against ESPN since 2015. A February 10 ESPN FOIA request specifically sought “all police reports containing allegations of sexual assault since Dec. 10, 2016, as well as records of arrests made between Feb. 6 and Feb. 9, according to court documents. The request came one day after MSU announced the suspensions of three MSU football players and a staff member associated with the team amid a sexual assault investigation.” MSU then sued ESPN and asked the court to decide whether some police reports could be withheld. The judge, Michigan Court of Claims Judge Cynthia Stephens found instead, “It does not take much imagination to think that the type of suit MSU wants to bring in the instant case could dissuade persons from making FOIA requests in the first instance out of fear of being sued by a public body. Such a chilling effect would be entirely incongruous with the statutory purposes of disclosure and open governance.”

ESPN won a separate lawsuit against MSU in 2015 for a 2014 FOIA  “for incident reports involving 301 student-athletes.” (The Lansing State Journal notes that MSU routinely uses the police investigation exemptions to deny documents that are not police products, including internal university investigations and emails.)

The Associated Press reports that reverse-FOIA lawsuits – while not an entirely new phenomenon – are becoming more popular with state and local governments “turning the tables on citizens who seek public records that might be embarrassing or legally sensitive. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.”

Another AP article examined a variety of bills introduced across the country intended to weaken state FOI laws. “Most of those proposals did not become law, but freedom-of-information advocates in some states said they were struck by the number of bills they believed would harm the public interest, and they are bracing for more fights next year.”

Cyber Vault: IRS Employees and Electronic Filing Fraud

1994 Government Accountability Office testimony before the Senate, which was recently taken down from GAO’s website, describes early efforts by the IRS to adapt to increased threats of electronic fraud and unauthorized access of taxpayer data by IRS employees. An interesting passage on “improper access to taxpayer data” focuses on IRS employees abusing taxpayer information, either by improperly monitoring their own fraudulent returns, issuing fraudulent returns, or “improperly browsing” other accounts. Audits also determined the punishments for such abuses were frequently too lenient.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 20. 

Leonard Perroots

TBT Pick – Two Men Saved the World from Nuclear War Two Months Apart in 1983

This week’s #TBT pick is chosen with the recent death of Stanislav Petrov, “the  man who saved the world” in September 1983 when he correctly suspected that Soviet satellite warnings of a U.S. nuclear attack were a false alarm and didn’t report them to superiors, in mind. As Nate Jones notes in his book, Able Archer 83:

“After a few terrifying minutes, the on-duty officer Colonel Stanislov Petrov reported, ‘this is a false alarm.’ Petrov came to this decision because he calculated that there was not yet enough corroborating radar on telescopic data, and because his ‘gut instinct’ told him that the United States would not launch a sudden nuclear attack against the Soviet Union.”

“’Gut instinct’ would play a role during Able Archer 83, this time on the American side.”

The man who saved the world less than two months later on the American side was Air Force lieutenant general and director of the Defense Intelligence Agency Leonard H. Perroots, then a young air force officer. In November 1993 Perroots made the “fortuitous, if ill-informed [] decision” … ‘out of instinct, not informed guidance’ to do ‘nothing in the face of evidence that parts of the Soviet armed forces were moving to an unusual level of alert” during a Soviet exercise conducted in response to Able Archer.

More on the 1983 War Scare can be found here.

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FOIA Request Helps Show What Steps NGA Taking to Reduce Overclassification: FRINFORMSUM 9/14/2017

September 14, 2017

National Geospatial-Intelligence Agency Fundamental Classification Guidance Review – Final Progress Report

FOIA Request Helps Show What Steps NGA Taking to Reduce Overclassification

The National Geospatial-Intelligence Agency (NGA) is going beyond the Executive Order on classification to improve the quality of its classification decisions and reduce overclassification. The Federation of American Scientists’ Steve Aftergood analyzes the changes in the agency’s new classification guide, including three types of “enhancement statements” that are likely “to promote a more thoughtful and limited approach to classifying national security information,” which were described in an agency report to the Information Security Oversight Office and obtained via FOIA. “NGA said that its use of enhancement statements to improve classification guides will soon be adopted throughout the Department of Defense, including all DoD intelligence agencies and military services, in a forthcoming revision of DoD manual 5200.45 on classification guidance.”

NSA Sets Up Surveillance Shop in Ethiopia, The Intercept Releases Trove of SIDtoday Articles  

The Intercept recently published a pair of interesting articles drawing on information from National Security Agency internal documents – nearly 300 SIDtoday articles – leaked by Edward Snowden.

The first draws on the leaked documents – as well as a document the National Security Archive obtained through the FOIA and published in 2009 – to chart how the agency built a surveillance network for Ethiopia, a key counterterrorism partner in East Africa that has been criticized for egregious human rights abuses and political violence. The NSA established its Deployed Signals Intelligence Operations Center, known as Lion’s Pride, in 2002 – but the roots go back to 1953, when the US “signed a 25-year agreement for a base at Kagnew Station in Asmara, Ethiopia, according to a declassified NSA report obtained by the nonprofit National Security Archive. Navy and Army communications facilities based there were joined by an NSA outpost just over a decade later.”

The second highlights stories from the 294 SIDtoday articles that are both substantive and strange, ranging from spies circumventing an attempt to mask their identities online by logging into their social media or doing a little online shopping, to efforts to spy on a liberated Iraq.

Mar-a-Lago guest Richard DeAgazio’s Facebook page featured a number of pictures of President Trump’s meeting with Japanese Prime Minister Shinzo Abe as news broke North Korea had fired a missile in the direction of Japan.

Mar-a-Lago Release Expected Tomorrow

The widely anticipated release of Mar-a-Lago visitor records for President Trump’s first six weeks in office has been delayed until noon tomorrow, Friday, September 15, at the request of the government.

Previously, federal district judge Katherine Polk Failla had ordered release of this first tranche of visitor logs for today, in response to the Freedom of Information Act lawsuit brought by the National Security Archive, the Knight First Amendment Institute at Columbia University, and Citizens for Responsibility and Ethics in Washington (Doyle et. al. v. DHS). But government lawyers told the plaintiffs last Friday that another week was needed for final review of the records.

Apparently, the Mar-a-Lago records do not include the level of detail that was routinely released by the Obama White House for over seven years on visitors, such as the staff person who authorized the visit, and location visited. Instead, the Mar-a-Lago records seem to consist of a series of e-mails between Secret Service components, sending names and identity information to be vetted. The release next Friday, September 15, will likely consist of a PDF containing these e-mails.

DC Glomars FOIA Request on Officer Seen Wearing Offensive Shirt

The District of Columbia is Glomaring a FOIA request for information on past complaints made against Officer Vincent Altiere, who was documented wearing a shirt bearing symbols “associated with the Ku Klux Klan and other racist groups,” saying any information – which they will not acknowledge the existence of – would be “a clearly unwanted invasion of personal privacy.” FOX 5 filed the FOIA request with the Metropolitan Police Department, and later appealed up to the mayor’s office; both entities denied the appeal.

Alleged Sessions Resignation Letter Won’t be Released

The Justice Department is Glomaring a FOIA request from the Huffington Post for a copy of Attorney General Jeff Sessions’ draft resignation letter allegedly written on May 5. Politico reported the resignation was penned after Trump repeatedly expressed frustration with Sessions’ recusal from the Russia investigation. The DOJ argued that “Even to acknowledge the existence of an alleged letter of resignation could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The DOJ also  refused to release the resignation letters of the U.S. attorneys who “left their posts at the request of the Trump administration” in March to the Burlington Free Press in response to a FOIA, saying they were “inherently personal.” Two former U.S. Attorneys – Tom Delahanty of Maine and Mike Cotter of Montana – later shared their resignation letters with the Burlington Free Press, saying there was nothing in the letters that should prevent their public release. Cotter’s March 10, 2017, letter stated: “Today at 12:45 p.m. MST I was informed that you Mr. President, ordered that I resign my position as United States Attorney for the District of Montana effective 5 p.m. MST today. Accordingly, I hereby submit my resignation.”

Kornbluh at the Secrets of State exhibit in Santiago.

Chile: Secrets of State

Forty-four years after the U.S. supported military coup, the Santiago Museum of Memory and Human Rights has inaugurated a special exhibit of declassified CIA, FBI, Defense Department and White House records on the U.S. role in Chile and the Pinochet dictatorship. The unusual exhibit, which officially opened to the public on September 5, is titled Secretos de Estado: La Historia Desclasificada de la Dictadura Chilena—Secrets of State: the Declassified History of the Chilean Dictatorship.

Curated by National Security Archive senior analyst Peter Kornbluh, the exhibit consists of 45 formerly classified documents dated between 1970 when Richard Nixon ordered to the CIA to instigate a coup in Chile, and October 1988 when General Augusto Pinochet sought to orchestrate a second coup after losing a plebiscite to stay in power.

The exhibit, mounted in the museum’s “Galeria de la Memoria,” will run until March, 2018.

Cyber Vault: First Responders Targeted

Cyber criminals, including those supporting violent extremists, appear engaged in an ongoing effort to single out first responders, hoping to impede their ability to react to disasters. Cyber Threats to First Responders are a Persistent Concern, compiled by the New York State Professional Fire Fighters Association in conjunction with the National Counterterrorism Center, DHS, and the FBI, cites recent incidents in DC and 12 states, and provides a list of possible countermeasures.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 13.

TBT Pick: “Godfather” of Colombian Army Intelligence Acquitted in Palace of Justice Case

This week’s #TBT pick is a 2011 posting on the Palace of Justice trial of Colombian army general Iván Ramírez Quintero, who “actively” collaborated with paramilitary death squads responsible for dozens of massacres, according to FOIA-released records published by the Archive. Ramírez, however, was exonerated for his role in the torture and disappearance of Irma Franco, one of several people detained by the army during the November 1985 Palace of Justice disaster. Archivist Michael Evans has the whole story and declassified documents here.

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Happy FOIA-ing!

Deadline Looms for Govt to Release Mar-a-Lago Presidential Visitor Records in Response to FOIA Suit: FRINFORMSUM 9/7/2017

September 7, 2017

Mar-a-Lago Diplomacy

Tomorrow Deadline for Mar-a-Lago Records Release

Tomorrow is the deadline for the Department of Homeland Security to release all responsive, non-exempt records of presidential visits to Mar-a-Lago in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).

It remains unclear how robust the visitor records the National Security Archive receives will be, but what is evident is that the FOIA lawsuit is forcing a greater degree of transparency than would have been possible without litigation.

The government has until the end of September to file declarations concerning the White House visitor logs. For comprehensive coverage of our suit, Doyle v. DHS, and the history behind the request, read:

Golf Handicap Records Help Track Lobbyists, Contractors Playing at Trump Golf Courses

A USA Today investigative team combed through social media posts, news stories, and a public website popular with golfers to track their handicaps and check other players’ scores, and found “Dozens of lobbyists, contractors and others who make their living influencing the government pay President Trump’s companies for membership in his private golf clubs, a status that can put them in close contact with the president.” Among them are “top executives of defense contractors, a lobbyist for the South Korean government, a lawyer helping Saudi Arabia fight claims over the Sept. 11 terrorist attacks and the leader of a pesticide trade group that sought successfully to persuade the Trump administration not to ban an insecticide government scientists linked to health risks.” The potential access for the super wealthy (a membership is roughly $100,000 a year) raises a host of ethical questions about whether it is appropriate for the president to be personally enriched by those trying to shape federal policy.

FOIA Sheds Light on LGBT Data Tussle

During the Obama administration the Justice Department, Department of Housing and Urban Development, Environmental Protection Agency, and Centers for Medicare and Medicaid Services all requested that the Census Bureau include questions about sexual orientation and gender identity in the next American Community Survey. As NPR reports, “Many LGBT rights groups say accurate national data about lesbian, gay, bisexual and transgender people are critical in making sure their needs are met.”

The Justice Department, however, rescinded its request under the Trump administration “because such a request requires thorough analysis and careful consideration,” and in March the bureau concluded there was “no federal data need” to collect the information. Former Census Bureau director John Thompson told NPR that had that not happened, the bureau might have started asking sexual orientation and gender identity questions.

NPR received a number of documents on the fight over LGBT questions through the FOIA, including a November 4, 2016, Justice Department letter citing the “legal authority supporting the necessity” for collecting the data, and a June 30, 2016, letter from HUD arguing that “Valid, reliable, and nationally representative data on sexual orientation and gender identity are essential to HUD fulfilling its mission” – particularly enforcement of the Equal Access to Housing rule and the Fair Housing Act.

18F Publishes Recommendations for National FOIA Portal

18F, the General Services Administration’s digital wizards, recently published their recommendations on the government-wide FOIA online request portal mandated by the FOIA Improvement Act of 2016. Compiled after extensive research and dozens of interviews (full disclosure: I was interviewed by 18F during this process), the tech team – solicited by the Justice Department, which received $1.3 million to build the website – found “that while a request platform alone cannot address the most significant challenges with FOIA, a single collection point for requests represents a unique opportunity to make significant improvements to the FOIA requesting system overall.”

The Sunlight Foundation’s Alex Howard summarizes 18F’s work-to-date and potential as follows:

Many of the problems with FOIA cannot be solved with better software. The public still waiting to hear anything from the Department of Justice regarding the “release-to-one, release-to-all policy” that it took public comment on last year, and the antagonism towards transparency by the Trump administration has been well documented.

That said, this is still good news in a historic moment in DC when open government is under threat. We applaud the General Services Administration for their work to date and look forward to seeing the beta go live, but this project is far from over. What happens next will depend in part on funding and political will.

The National Security Archive echoes these sentiments.

Soviet Navy Declassified

The CIA has declassified and published some 82 documents, totaling 2,000 pages, on the Soviet Navy during the Cold War. The release coincides with a joint event hosted with the National Museum of the U.S. Navy and the Naval Historical Foundation. The CIA press release notes, “The documents range from translations of clandestinely-obtained articles from the Soviet military journal, Military Thought, to high-level National Intelligence Estimates.”

The collection is a third in a series of CIA releases on Warsaw Pact forces. The earlier releases are:

How to Counter Botnets?

An unclassified Defense Advanced Research Projects Agency (DARPA) presentation dated July 31, 2017, indicates that DARPA is pursuing methods for countering botnets-based operations. Specifics from the presentation, Harnessing Autonomy for Countering Cyberadversary Systems (HACCS), include the program’s structure and schedule, classification and clearance requirements, and meeting and reporting requirements.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 6.

TBT Pick – Stopping Korea from Going Nuclear, Parts 1 and 2

This week’s #TBT pick is a pair of postings on South Korea’s nuclear ambitions. The first posting documents how the Ford administration accumulated evidence – including a secret report to Secretary of State Henry Kissinger relaying that President Park Chung-hee reportedly instructed South Korean scientists to build nuclear bombs by 1977 – that raised worries about proliferation and regional instability. The second charts how the Ford administration had to use a combination of approaches to keep South Korea’s Park dictatorship from going forward with a suspected nuclear weapons program in the mid-1970s.

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Will ‘Still Interested’ Letters Surge as End of FY 2017 Approaches? FRINFORMSUM 8/31/2017

August 31, 2017

Will ‘Still Interested’ Letters Surge as End of FY 2017 Approaches?

The Office of Government Information Services has a timely blog on the use of “still interested” letters, reminding agencies of the most recent Department of Justice Office of Information Policy guidance on the use of these letters as the end of Fiscal Year 2017 approaches and agencies may be eager to close old FOIA requests. (“Still interested” letters are letters that agencies send FOIA requesters – often years after the request was made – to determine if the requester is still interested in the request being processed.) The blog emphasizes that the latest guidance requires agencies limit the instances in which they send such letters to when the agency “has a reasonable basis to believe that the requester’s interest in the records may have changed” and instructs agencies to provide requesters a reasonable amount of time to respond to the query (30 days at a minimum).

It remains worth noting that the overall premise behind these letters is fundamentally flawed. Nothing in the FOIA itself allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted.

Trump’s Election Integrity Commission Runs Afoul of Judge for Failing to Disclose Public Info

U.S. District Judge Colleen ­Kollar-Kotelly recently admonished President Trump’s Election Integrity Commission during a federal court hearing concerning the commission’s compliance with open government laws for not releasing all public documents before its mid-July meeting. The commission released only an agenda and proposed bylaws before last month’s meeting, but provided commissioners with a 381-page “database” allegedly detailing 1,100 cases of voter fraud, as well as a list of possible discussion topics that should also have been published.

The DOJ Civil Division’s Elizabeth Shapiro explained the error by saying it was based on guidance from the Office of Legal Counsel and was an honest misunderstanding.

Judge ­Kollar-Kotelly said it was “incredible” that the DOJ didn’t believe it had to post “documents prepared by individual commissioners” for the meeting in advance, and ordered “the government to meet new transparency requirements” for its next meeting on September 12.

Recently-pardoned Maricopa County Sheriff, Joe Arpaio.

Arpaio’s Cold Case Posse

MuckRock recently published a collection of FOIA-released records from the Maricopa County Sherriff Office on former sheriff Joe Arpaio’s “cold case posse” – Arpaio’s “controversial non-profit whose chief claim to fame was investigating outgoing President Barack Obama’s birth certificate” and was disbanded by current sheriff Paul Penzone earlier this year.“Highlights” from the documents include: emails alleging that Mexican cartels were colluding with the US government to interfere with the posse’s investigation; setting up a 2013 meeting with Congresswoman Michelle Bachmann (R-Minn.) two years after Bachmann said the “birther” issue was settled; and Arpaio reassuring a fan in December 2016 that the investigation into Obama’s birth certificate was ongoing.

Remembering the Buenos Aires Herald

The Buenos Aires Herald, the storied English-language Argentinian newspaper, folded last month. The news hit many hard – in no small part because of the Herald’s role reporting on Argentina’s Dirty War. The paper distinguished itself early on in the decade of state-sponsored terrorism, by reporting on what others wouldn’t – like the assassination of two seminarians in a church “by raising doubts about the official account, which held that they had been murdered by an armed leftist group.” When news of the papers closing spread, the human rights group, the Mothers of Plaza de Mayo, thanked the editor for “making us feel less alone.”

The National Security Archive’s Southern Cone project has a number of postings on the Dirty War, a selection of which can be found below:

Mark Zuckerberg’s Ill-Fated Meeting with Government Climate Scientist

FOIA requests to the Department of Interior and the National Park Service won the release of documents that shed light on why Facebook CEO Mark Zuckerberg’s meeting with DOI climate scientist Dan Fagre to discuss global warming was abruptly cancelled. Motherboard reports “that Trump administration appointees took issue with Fagre’s involvement in the event. The emails also show that NPS staff were left scrambling to explain Fagre’s exclusion to Facebook, which repeatedly requested a government scientist capable of speaking about the effects of climate change on melting glaciers at the park. The emails also show that, prior to Fagre’s exclusion, NPS Acting Director Michael Reynolds suggested that the administration could try to ‘manage the talking point’ of government scientists during the meeting.”

For Document Hounds: NSA History Collection Finding Aid

Steve Aftergood has published a declassified National Security Agency finding aid “for a collection of thousands of historically valuable NSA scientific and technical records” recently transferred to NARA. NARA’s David Langbart says that the records described “mostly consist of technical, analytical, historical, operational, and translation reports and related materials. Most of the records date from the period from the 1940s to the 1960s, but there are also documents from the 1920s and 1930s and even earlier.” Aftergood notes that more titles “deal with narrow, highly specialized aspects of cryptologic history prior to 1965. A few examples picked at random: German Signals Intelligence in World War II; A Compilation of Soviet VHF, UHF and SHG Activity by Area, Source and Service; Hungarian Army Communications; Description of Chinese Communist Communications Network; and so on.”

JFK and AEC Chairman Glenn Seaborg speaking with Edwin McMillan, director of Berkeley Radiation Laboratory (wearing badge), on 23 March 1962.

“Clean” Nukes and the Ecology of Nuclear War

The Atomic Energy Commission initiated studies to consider the ecological impact of nuclear war in the early 1960s, a time when the writings of natural scientist Rachel Carson were starting to inspire the modern environmental movement. The studies grew out of a belief that U.S. national security required a better understanding of the biological and environmental impacts of a nuclear conflict. Documents published this week for the first time by the National Security Archive detail the creation of the AEC’s Technical Analysis Branch (TAB), which conducted the studies, and its early efforts at exploring the long-term consequences of nuclear war.

Get the whole story, and read the documents, here.

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FOIA Helps Show How Conservative TV Giant Could Find its Way Into 7 out of 10 Homes: FRINFORMSUM 8/17/2016

August 17, 2017

The FCC’s Ajit Pai’s calendar notes a meeting with Sinclair executives and business partner.

FOIA Helps Show How Conservative TV Giant Could Find its Way Into 7 out of 10 Homes

FOIA requests to the Federal Communications Commission won the release of hundreds of pages of documents showing how the TV giant Sinclair Broadcast Group stands to benefit from the agency’s “deregulatory blitz.” Most important is a deregulation that effectively removes a cap on how many stations a single broadcaster can own and that could put Sinclair in the vast majority of American’s homes.

Sinclair, already “the nation’s largest television station operator by coverage,” is trying to merge with another TV giant – Tribune Media. Current rules, however, mandate that no one company can own TV stations that reach more than 39 percent of the nation. But FCC chair Ajit Pai approved a measure in April – that reinstates “an obsolete loophole called the ‘UHF discount,’ which allows broadcasters to discount by 50 percent the reach of local stations that use ultra-high-frequency (UHF) TV signals” – that will all but ensure the media giant can work around this constraint.

If approved, the merger would “transform Sinclair into a media juggernaut, with reach into seven out of 10 homes through more than 200 stations in cities as diverse as Eureka, Calif., and Huntsville, Ala. The company would have a significant presence in important markets in several electoral swing states, including Pennsylvania, Ohio and North Carolina, and would gain entry into the biggest urban markets: New York, Los Angeles and Chicago.”

The move alarms critics. Former FCC Commissioner Michael Copps says, “No one company should have such power over the news and information that citizens must have to successfully practice the art of self-government. And that doesn’t even get into the vices of this particular company.” The Washington Post reported in December 2016 that, “A review of Sinclair’s reporting and internal documents shows a strong tilt toward Trump” and that local affiliates were forced to air “must-run” pro-Trump specials.

FCC chair Ajit Pai has also come under fire in recent months for his proposed net neutrality rollbacks. More on those stories here and here.

FOIA Sheds Light on Harassment of Trump Org Whistleblowers by Trump Security Again

A family’s harassment at the hands of the Trump Organization’s security team is the subject of a recent Buzzfeed article. The story – bolstered by FOIA responses from the FBI – details how Trump security guards terrorized the wife and 12-year-old son of a Trump Organization employee who threatened to reveal financial malfeasance at the company. The employee, Daut Bajrushi, “believed he had evidence the Trump company had ripped off homeowners of about $300,000.” When his wife and son went to his office to retrieve paperwork, guards allegedly intimidated them and threatened to hurt the family if they went public.

This is not the first accusation of Trump security intimidating would-be whistleblowers. FBI FOIA responses to Buzzfeed’s Jason Leopold and MIT’s Ryan Shapiro and published in May of this year detailed previously unreported threatening phone calls – one the FBI characterized as “overt extortion” – related to Trump’s business dealings that were investigated by the bureau. The more recent was a 2009 call that was received by a high-profile bankruptcy lawyer representing clients who “stood to lose more than a billion dollars” over Trump’s failed casino venture, Trump Entertainment Resorts. The caller told the lawyer, Kristopher Hansen, that “My name is Carmine. I don’t know why you’re fucking with Mr. Trump but if you keep fucking with Mr. Trump, we know where you live and we’re going to your house for your wife and kids.” More on this story here.

FBI Sued for Records on Roger Ailes for Second Time this Month

 Ryan Shapiro and Property of the People’s Operation 45 are suing the FBI under the FOIA for records on ousted Fox News head, Roger Ailes, as well as documents concerning Fox News Channel, Fox Television Stations, and 21st Century Fox. The complaint was filed in the US District Court for the District of Columbia.

This is the second FOIA suit filed this month for the FBI’s records on Ailes. Gizmodo sued the FBI after the bureau didn’t respond in that statutory 20-day time period. The complaint was filed in the US District Court for the Southern District of New York.

We Need to Have Our History

Information Security Oversight Office (ISOO) director Mark Bradley recently gave an enlightening interview to Federal News Radio’s Meredith Somers that should be a must-read for classification authorities and records management officials alike. Of the approaching tsunami of email and electronic records Bradley says, “I worry about what historians will face 50 years from now when they write the history of what’s going on now, what kind of records they’re going to have, whether they’re going to have access to them at all.” Bradley also says agencies need to stop approaching classification and declassification efforts as a zero-sum game; “If you ask an agency like the Central Intelligence Agency [CIA] to focus more on classification, they’ll ask whether you’d rather the agency combat terrorism or spend money on looking at what happened during the Bay of Pigs. The answer obviously is we all want to be protected, but we also need to have our history.”

The 50-Year Rule Not Working

Our “FOIA Yoda” and Nuclear Vault director, Dr. William Burr, takes a look at some more dubious secrets in “The Fifty-Year Rule: Its Use and Misuse.” A key question? How can DOD reviewers seriously believe that these 50-year old documents remain so sensitive that disclosing them would cause serious harm to U.S. foreign relations?

TBT Pick – JFK and Top Aides Considered Preventative Military Action Against Chinese Nuclear Facilities

Today’s #tbt pick is a 2001 posting detailing how President John F. Kennedy and top advisers considered bombing strikes and covert paramilitary operations to destroy China’s nascent nuclear weapons program in the early 1960s. Some of the highlights from the declassified documents behind the posting are:

  • JFK saw the prospect of a nuclear-armed China as a dangerous threat and the Pentagon and the CIA looked closely at the possibility of covert para-military operations to destroy China’s nuclear weapons installations.
  • National security adviser McGeorge Bundy played a key role in encouraging covert planning against China’s nuclear program, which included discussions of paramilitary operations such as raids by Taiwanese commandos as well as the prospect of joint action with the Soviet Union.
  • Other officials, including State Department analysts, were not persuaded by worst-case analyses of a nuclear China and argued that Beijing would be more cautious, not more aggressive.

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