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Government’s Oldest FOIA Request Even Older than Reported: FRINFORMSUM 3/28/2019

March 28, 2019

Archivist Bill Burr Wins Dubious Honor of Oldest Pending FOIA Request 

Oldest pending FOIA request govt-wide is even older than NARA reports.

The Archive’s latest FOIA Audit showed that the oldest pending FOIA request government-wide is 25-years-old, that’s old enough to rent a car! Curious to see who it belonged to (and with a strong suspicion it was ours), we filed a FOIA request with the National Archives and Records Administration to find out. NARA recently responded with a copy of the request – filed in September 1992 even though NARA reports its oldest request is from August 1993 – that was filed by our very own William Burr. The request is still alive and kicking; Bill reports he received a document from this request last fall.

Army Waves $300K Fee Threat for Water Test Results after Outrage

Public backlash has prompted the Army to wave its threat of a $300,000 FOIA fee to release the results of water tests at military installations for a dangerous contaminant that is linked to cancers and other illnesses. The Army stopped its fee bullying in this instance after Sen. Leahy publicly excoriated the department, calling the decision to charge for the records absurd and the fee “offensive.” (Prior to the public outcry, three Navy and Marine offices had already provided the documents without any charge.) It was also Senator Leahy who in 2012 released “more than 8,000 Department of Defense documents relating to the historic drinking water contamination that occurred over several decades at Camp Lejeune Marine Corps Base.” 

The FOIA request was filed by the Environmental Working Group in November and sought records of testing done at 154 specific installations. The Army justified the fee by saying the request was too broad and would take 6,400 hours of work to complete – in other words, 160 work weeks.

Declassification Diplomacy: The Argentina File

The Argentine government announced -on the 43rd anniversary of the military coup in that country- that the Trump administration will provide it with “the largest delivery of declassified documents” ever made available to another nation. The formerly secret U.S. intelligence records concern human rights abuses committed during the military dictatorship between 1976 and 1983. The documents come from agencies including the CIA, FBI, NSC, and Defense Intelligence Agency, and their official transfer is planned for mid-April during a visit by Argentina’s minister of justice, Germán Garavano, to Washington D.C.

Argentine President Macri tweeted, “These documents will play a fundamental role in advancing justice for still unresolved issues of the past, one of the darkest periods of Argentine history.”

In support of the Argentina declassification project, the National Security Archive hailed the forthcoming document transfer. “We praise the Trump administration as well as President Macri for their concrete contribution to the cause of truth and human rights,” said Carlos Osorio, Director of the National Security Archive’s Southern Cone Documentation Project.

The Archive will analyze the documentation and post a selection of the most significant and revealing records after the U.S. transfers the documents to Argentina.

FCC has to pay over $40K in attorney’s fees after court rules against its bogus FOIA withholdings

The Federal Communications Commission – represented by the Justice Department’s Jessie K. Liu, Daniel F. Van Horn, and Johnny H. Walker –  must pay $43,000 in attorney’s fees after failing to comply with journalist Jason Prechtel’s FOIA request for “data that would identify who made bulk comment uploads in the proceeding that led to the repeal of net neutrality rules.” 

This is the latest development in the FCC’s ongoing effort to stonewall FOIA requests about its net neutrality rules. The saga began in 2017 when the FCC told a requester seeking information on an alleged DDoS attack the agency claimed disrupted its online public comment system for its net neutrality rule change proposal that there were no responsive documents to the FOIA request because the agency’s “initial analysis on the day of the attack ‘did not result in written documentation.’” The alleged attack came after FCC chair, Ajit Pai, proposed to “dismantle net neutrality rules” – rules that he’s previously said were a response to “‘hypothetical harms and hysterical prophecies of doom’ and that there was no real problem to solve.”

Gizmodo filed a FOIA request concerning the alleged attack on May 22, specifically requesting documents related to public comments made by FCC Chief Information Officer David Bray about the agency’s analysis. The agency released 16 pages and withheld 209 more in full – with cited exemptions running the gamut from trade secrets to personal privacy, including an exemption protecting medical files. (Even if there is personal information in responsive records, FOIA mandates that agencies release all segregable portions of documents.)

TBT Pick – Soviet Union Had First Real Taste of Democracy 30 Years Ago Today – and Politburo Document Shows How Committee Made Sense of It

This week’s #TBT pick is chosen with the 30th anniversary of the first competitive Soviet elections in mind. It is a posting by Archive Russia Programs Director Svetlana Savranskaya analyzing a weekly Politburo meeting from March 28, 1989 in which the Committee attempted to make sense of the results, which saw “Some 20 percent of party candidates lost –even with no opposition—including the top party leaders in Moscow and Leningrad.  The Leningrad party chief drew only 110,000 votes while 130,000 of his constituents crossed out his name –a practice that would become epidemic in the June 1989 Polish elections.”

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Soviet Union Had First Real Taste of Democracy 30 Years Ago Today – and Politburo Document Shows How Committee Made Sense of It

March 26, 2019

By Svetlana Savranskaya

Thirty years ago today, the Soviet Union had its first real taste of democracy—its first competitive multi-candidate elections, which many people in Russia today still remember as the most free elections in their living memory.  Contrary to popular perception, the first free elections in the socialist bloc took place not in Poland, but in Moscow following the decisions that were made at the XIX party conference held in June 1988.  Although the Soviet Union still had a monopoly of Communist party enshrined in its Constitution, the electoral process helped define cleavages in the party and among the voting public, which later helped in the formation of the new parties.  For the first time, candidates were free to campaign on their own platform and could nominate themselves without the party’s approval.  Several candidates could be nominated for one seat, and even where only one candidate was nominated, people could vote for or against that candidate.  Freedom of expression reached its peak in preparation for the elections where new revelations about “blank spots” of history, corruption, and party privileges were published every day and newspaper readership skyrocketed.

As the results started to come in, people learned that the leading dissident Andrey Sakharov, who just recently was brought back from his exile by Gorbachev, was elected to the Congress, and that Boris Yeltsin, the reformer bounced by Gorbachev from the Politburo in 1987, won overwhelmingly as Moscow’s at-large candidate.  Some 20 percent of party candidates lost –even with no opposition—including the top party leaders in Moscow and Leningrad.  The Leningrad party chief drew only 110,000 votes while 130,000 of his constituents crossed out his name –a practice that would become epidemic in the June 1989 Polish elections. The party was shocked by its losses, the citizens were shocked by their success.  Nobody quite knew yet how to govern the new processes and where they would lead, but Moscow was floating in a state of democratic euphoria, which is unforgettable to the people who lived through it.  The following document shows how the ruling Politburo was trying to make sense of what has just happened.

This weekly Politburo meeting from March 28, 1989 follows the March 26 vote for the USSR’s first popularly elected national Congress of People’s Deputies.  The discussion features both Gorbachev’s positive spin and a thinly—veiled sense of shock on the leadership’s part.  The new super legislature of 2,250 members—elected by 170 million voters—would meet from May 25 through June 9, elect a standing legislature—the new 542-member Supreme Soviet—and become the focus of national and world attention thanks partly to live telecasts spotlighting noted dissidents such as Andrey Sakharov in their extraordinary new roles as elected deputies.  At this session, Gorbachev lays claim to achieving the Politburo’s goals of advancing democratization and successfully holding free elections.  Yet there is a serious discordant note: the party was unprepared for the new democratic process it was trying to launch.   As in Poland, the CPSU went into the elections without a sense of how dramatically it had squandered its legitimacy.  In the short term, the new reformist Congress would strengthen Gorbachev’s agenda; but subsequently it would become a platform for the radical democrats.

Army Charges $300K for Water Test Records as Senate Judiciary asks DOJ: Why the “Continued Culture of Reflexive Secrecy” Around FOIA? FRINFORMSUM 3/21/2019

March 21, 2019

Army Charges $300K for Water Test Results

The Army is trying to charge a FOIA requester $300,000 to release the results of water tests at military installations for a dangerous contaminant that is linked to cancers and other illnesses. The news of the outrageous fee comes after deputy assistant Defense secretary Maureen Sullivan testified before the House that the DOD recently identified 401 military sites where the contaminants were used.

The FOIA request was filed by the Environmental Working Group and sought records of testing done at 154 specific installations. The Army justified the fee by saying the request was too broad and would take 6,400 hours of work to complete, even though “three Navy and Marine offices that the group also asked for the results of the water tests waived the processing fees.”

Senator Patrick Leahy, who in 2012 released “more than 8,000 Department of Defense documents relating to the historic drinking water contamination that occurred over several decades at Camp Lejeune Marine Corps Base,” blasted the Army’s response, calling it absurd and the fee “offensive.”

The Army isn’t alone in engaging in “fee bullying” to scare off requesters (and many agencies still charge search – and sometimes review and duplication fees – after missing their response deadline, even though this is prohibited by the 2016 FOIA Improvement Act). Here are just a few other egregious examples:

“A Continued Culture of Reflexive Secrecy”

A bipartisan group of senators wrote a scathing letter to the Justice Department’s director of the Office of Information Policy, Melanie Pustay, “to express concern about recent trends in FOIA compliance and reports indicating a continued culture of reflexive secrecy across the government.” Senators Chuck Grassley, Patrick Leahy, John Cornyn, and Dianne Feinstein cite the National Security Archive’s most recent audit, which shows some agencies have FOIA requests a quarter-of-a-century old and unabated backlogs, as evidence of this ongoing trend. Interestingly, the letter also eschews OIP’s misleading statistic of a 92.5% FOIA release rate, and notes that in reality, according to an unbiased reading of the DOJ’s own statistics, “requesters received censored files or nothing at all in 78% of requests, a record over the past decade.”

The senators ask Pustay to respond in writing by April 17 to a series of questions, including what agencies are “not linked to” and what steps OIP is taking to reduce delays caused by inter-agency consultations and referrals – otherwise known as the “referral black hole.”

The letter comes on the heels of a House Committee on Oversight and Reform Sunshine Week hearing which began with Chairman Elijah Cummings stating, “DOJ needs to do a much, much better job because we are seeing far too much information being delayed and even withheld.”

FOIA Advisory Committee Meeting: 508 and Proactive Posting Delays

A recent study using data from 2008 through 2016 found that, on average across the government, there are 188 FOIA requests per every FOIA officer. The study, which was published in the American Review of Public Administration and discussed at the most recent FOIA Advisory Committee meeting, contributes to a growing body of academic FOIA research, though quantitative studies necessarily weigh agencies’ self-reporting data at the expense of the less-quantifiable trends and attitudes experienced by requesters.

Alina Semo, the director of the FOIA ombuds office, the Office of Government Information Services, also discussed her long-term concerns about the FOIA workforce at the FACA meeting. While the Office of Personnel Management introduced a government information job series for FOIA professionals in 2012, she said, “I worry about the fact that we’re not going to have another wave of FOIA professionals that will come behind the ones that are going to retire in 10, 15, 20 years.”

She also discussed OGIS’ recent annual report to congress, which discusses agencies’ problems posting documents on their websites either proactively or after they’ve been requested three or more times, as required by the 2016 FOIA amendments. Many FOIA offices place at least part of the posting blame on making documents 508 compliant. (508 refers to a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities, and that federal employees with disabilities can access records with the same ease as their counterparts, since 1998). FOIA officers continue to cite 508 compliance as a hurdle in posting documents online, saying that sometimes agency IT shops don’t help FOIA offices make documents 508 compliant, so the burden falls on the FOIA office.

To this end, the OGIS report asks congress to pass legislation to give agencies “sufficient resources” to comply with 508. The ombuds office also “has suggested reaching out to the General Services Administration’s 18F agency to streamline and simplify the process of making documents 508 compliant.”

There are, of course, work-arounds if making every single document 508 compliant (even though documents since 1998 are supposed to be born 508 compliant) is too burdensome. One is to post a 508-compliant index of all records released under FOIA in the FOIA reading room and allow those with disabilities to request individual documents off the index while the agency works behind the scenes to continue making all documents 508 compliant. A 2016 FOIA FACA meeting with a panel of representatives from the Access Board and the General Services Administration reinforced this practice, noting that some agencies like DHS do post non-508 compliant documents but provide a disclaimer and further instructions for individuals with accessibility issues on how to access the documents. And a recommendation from the FACA Committee in April encourages agencies to familiarize themselves with the Rehabilitation Act’s “undue burden provision” that allows agencies to post electronic documents that are not Section 508 compliant if rendering them compliant would “impose an undue burden” on the agency.

“Is the Possibility of a Third World War Real?” 

Don’t miss the Archive’s Nate Jones’ article for the Nuclear Proliferation International History Project, “Is the Possibility of a Third World War Real?” In it, he “presents new evidence drawn from KGB documents and other eastern and western sources to examine Ukrainian and Soviet nuclear history. These new Soviet intelligence documents show the inefficiency of the early Soviet ICBM program; details of the domestic and international intelligence operations of the KGB; descriptions of Soviet decision-making and American manipulation of the KAL 007 civilian aircraft shoot down,” and much more.

TBT Pick – Iraq: The Media War Plan  

This week’s #TBT pick is chosen with the anniversary of the 2003 Iraq invasion in mind, and is a 2007 posting from our Iraq Project director Joyce Battle on the media war plan. It highlights a White Paper and a PowerPoint obtained by the Archive through FOIA that recommended the creation of a “Rapid Reaction Media Team” to serve as a bridge between Iraq’s formerly state-controlled news outlets and an “Iraqi Free Media” network.

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DOJ Needs to do a “Much, Much Better Job” on FOIA and “How Can You Say That’s Compliance?” Tough Bipartisan Questions on Gov-Wide FOIA Performance at Sunshine Week Hearing: FRINFORMSUM 3/14/2019

March 14, 2019

“How Can You Say That’s Compliance?”

This year’s House Committee on Oversight and Reform Sunshine Week hearing was a strong showing of bipartisan support for FOIA and a desire to address the shortcomings in its administration.

Rep. Cummings receiving his well-deserved award for fighting for the public’s right to know.

In his opening remarks, Chairman Elijah Cummings (D-Md.) pinned deserved attention on the Justice Department, which is responsible for “encouraging” government-wide FOIA compliance and defends agencies in court when sued under the statute. Rep. Cummings said, “In my opinion, DOJ needs to do a much, much better job because we are seeing far too much information being delayed and even withheld” (he expressed the same sentiment when receiving the 2019 Sunshine in Government Award at the National FOI Day Conference).

Cummings also called out the DOJ’s Chief FOIA Officer, Jesse Panuccio, for saying of FOIA at the department’s Sunshine Week KickOff Event, “Unfortunately, as with everything in life, there are excesses, and those excesses strain the system. Some groups have turned FOIA into a means of generating attorneys’ fees or of attempting to shut down policymaking.” Cummings noted this makes it seem the agency “is framing requests for information as obstructions.” (For a more detailed account of the DOJ’s long-running – think 50 years –  attempt to undermine FOIA, be sure to read my colleague Nate Jones’ excellent Washington Post article.)

The witnesses at the hearing were the Director of the Justice Department’s Office of Information Policy, Melanie Pustay, Acting Director of the National FOIA Office for the Environmental Protection Agency, Tim Epp, and the Acting Deputy Chief FOIA Officer from the Department of the Interior, Rachel Spector. None had an easy day of it.

Pustay reiterated the Justice Department’s skewed statistics during her testimony – to sometimes withering critique. Rep. Mark Meadows (R-NC) grilled Pustay on agencies’ inability to respond to FOIA requests within the statutory timeframe, saying “we continue to miss the statute.” Pustay hedged and “disagreed with the premise” of his question about agency response times, to which Meadows said, “that was supposed to be a softball question.”

The Archive audit charts agencies oldest request, their backlog, and average processing time for “complex” requests.

The National Security Archive’s most recent FOIA audit provides a visual breakdown of just how much FOIA delays continue unabated – and points out that most agencies get more favorable reporting numbers by labeling normal requests as “complex.” Listen carefully to the House hearing and you’ll notice agencies do their best to discuss the processing times and release rates only for “simple” FOIAs. The difference between simple and complex requests can be arbitrary; one agency – the Defense Intelligence Agency – claims that only two percent of its FOIA requests are simple. Focusing only on requests that agencies self-define as simple paints a distorted picture of overall FOIA processing. (Senator Patrick Leahy (D-VT) referred to our audit during his Sunshine Week remarks at the National Archives, saying “we’d be fooling ourselves by failing to acknowledge the challenges facing FOIA and transparency in the months and years ahead.” Sen. Cornyn (R-TX) also spoke, saying sharing information is a responsibility, not a burden.)

Another hearing highlight came from Rep. Debbie Wasserman Schultz (D-FL) as she grilled Interior’s Rachel Spector. Rep. Wasserman Schultz sought more information on whether the Interior Department made a conscious effort to delay or deny politically-sensitive FOIA requests, and presented a February 28 memo instructing just that – including adding a layer of review for officials who had left the department within the last three months – seemingly referring to former Secretary Zinke. Wasserman Schultz asked if there was any reason for that arbitrary timeframe to be included in the memo other than to protect the former secretary, to which Spector said yes, though did not clearly state why. The Congresswoman said Spector’s answers were “not passing the straight face test.” (Interestingly, Ms. Spector also testified that Interior “reached out” to the FBI for help crafting its notorious proposed FOIA regulations.)

Large Atlantic Drilling Proposal Imminent

At the same time his agency’s Chief FOIA Officer was struggling to answer the House Committee’s tough questions, the Guardian broke a story revealing that the Interior Department’s Assistant Secretary for Land and Minerals Management, Joe Balash, told a group of fossil fuel executives that “the Trump administration will soon issue a proposal making large portions of the Atlantic available for oil and gas development.” FOIA-released records show Balash further noting that it was “easier to work on such priorities because Donald Trump is skilled at sowing ‘absolutely thrilling’ distractions.”

Another recent FOIA request shows that Interior’s Bureau of Safety and Environmental Enforcement issued 1,700 waivers to an Obama-era offshore oil drilling rule that was issued in the wake of 2010’s Deepwater Horizon oil spill disaster.

FBI Must Search for Records on Impersonating Filmmakers

The FBI must search for and review documents on the Bureau’s “impersonation of documentary filmmakers during investigations” thanks to a FOIA lawsuit brought by the Reporters Committee for the Freedom of the Press (RCFP). RCFP filed the initial FOIA request after learning the bureau impersonated documentary filmmakers as part of a ruse to interview rancher Cliven Bundy and his family during the 2014 standoff between the Bundys and the Bureau of Land Management; the request sought records related to the incident and the FBI’s practice of impersonating film crews more broadly. The FBI issued a Glomar response – refusing to confirm or deny the existence of records – pursuant to FOIA’s Exemption 7(E), which concerns law enforcement techniques, and the Justice Department’s Jessie K. Liu, Daniel F. Van Horn, and Johnny H. Walker argued the same in court. US. District Court Judge Rudolph Contreras for the D.C. Circuit ruled in favor of the Plaintiff, saying “The Court does not see how disclosing whether any records exist could reduce or nullify the technique’s effectiveness.”

This is not the first time the FBI has been caught impersonating a journalist. It was widely reported that in 2007 the FBI ignored its own rules impersonating an AP journalist, and then deemed the rule-breaking reasonable when it came to light thanks to a FOIA lawsuit brought by RCFP and the AP. The bizarre story began in 2007 when the FBI created a fake story on bomb threats made at a Seattle-area high school, attributed it to the AP, and then sent it in a private MySpace message to the student suspected of making the threats against the school. “By clicking on the link, the suspect unwittingly downloaded a piece of malware, a computer bug that enabled agents to identify his Internet protocol address.” Documents obtained from the suit include details on the “sensitive circumstances” that must be met for an undercover agent to impersonate a member of the news media.

The FBI is not the only law enforcement agency that impersonates people on social media in controversial ways to further its investigations. In 2014 a Drug Enforcement Agency (DEA) agent impersonated a young woman on Facebook, posted racy photos of her and pictures of her underage son and niece on the social media site, all as part of a drug investigation.

Don’t burn down the Archives!

A recent post on the National Declassification Center’s blog by staff member David Fort has some great information on the center’s process for reviewing records for declassification once they’ve been accessioned to NARA, as well as the office’s FOIA process. As Fort notes, “The two main challenges our office faces are first, the fact that we do not have declassification authority, so that we are very dependent upon other agencies in processing the FOIA requests in a timely manner and providing us with instructions on how to handle the document.  Our second challenge is the habit agency reviewers maintain in looking at a historical document through the lens of today’s national security environment, which leads to unnecessary retention of national security classifications.”

Read to the end to learn about the strangest thing Fort has discovered in his work – a find that required a call to the local police department!

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Forecast for Sunshine Week: Proposed Interior Dept FOIA Rules Show Agencies Still Eager to Weaken FOIA – and Congress Eager to Prevent it: FRINFORMSUM 3/7/2019

March 7, 2019

Congress Strikes Back at Interior Department’s Bad FOIA Regs

Representative Elijah Cummings, D-Md, and Senators Chuck Grassley, R-Iowa, Patrick Leahy, D-Vt., and John Cornyn, R-Texas, recently sent a stern letter to the Interior Department reprimanding the agency for its efforts to weaken its FOIA regulations and urging it to reconsider the rule change.

The proposed rule change – which garnered more than 65,000 comments – include allowing the DOI to preemptively reject what it defines as “unreasonably burdensome” requests, the possibility of imposing a monthly limit to the number of either pages or requests from a single requester the agency will process, and a host of other changes that may make it more difficult to obtain fee waivers and expedited processing.

The bipartisan group of lawmakers, all seasoned FOIA champions, told the Interior Department, “We write to express significant concern with the rule recently proposed by the Department of the Interior (DOI) concerning its Freedom of Information Act (FOIA) procedures. The proposed rule appears to restrict public access to DOI’s records and delay the processing of FOIA requests in violation of the letter and spirit of FOIA. The American people have the right to access information from DOI, and the proposed rule needlessly encroaches on that right.”

The reminder that Congress is still eager to conduct oversight of FOIA comes just in time for Sunshine Week, the annual, week-long celebration of access to information. Some notable events coming up in the D.C. area include:

Archive’s 2019 Government-Wide FOIA Audit Coming Soon

The National Security Archive’s 18th Freedom of Information Act Audit is coming soon – with disappointing results of a government-wide survey intended to see how much progress agencies have made closing their oldest requests. A 2011 Archive Audit found eight federal agencies have FOIA requests a decade old – and the results now are no less concerning.

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

FEMA Buyouts More Frequent in White Communities

A FOIA investigation by NPR shows that white communities are more likely to receive federal buyouts from the Federal Emergency Management Agency after a disaster than minority neighborhoods. NPR obtained a database of more than 40,000 FEMA buyouts from 1989 through 2017 that show “most of the buyouts in the FEMA database happened in neighborhoods that were more than 85 percent white and non-Hispanic, even though disasters affect all kinds of communities. For context, the U.S. is 62 percent white and non-Hispanic.”

Understanding the CIA: How Covert (and Overt) Operations Were Proposed and Approved during the Cold War

This week the National Security Archive published a collection of documents obtained through FOIA and archival research that helps illuminate the workings of the senior interagency group within the US government that approved covert CIA operations during the Cold War. The selection is a tiny fragment of an extensive new compilation, CIA Covert Operations III: From Kennedy to Nixon, 1961-1974, published recently as part of the Digital National Security Archive (DNSA) and shows, among other things:

  • CIA Director Allen W. Dulles made a bid in June 1961 for this “Special Group” to have an autonomous ability to approve covert operations (Document 1).
  • In early 1962 the CIA’s top lawyer relied upon presidents’ Article 2 powers under the Constitution, and on the notion Congress approved by appropriation, to justify covert operations. He warned that no statute actually authorized covert operations (Document 4).
  • President Kennedy’s brother, Robert F. Kennedy, in March 1962 brought up personal characteristics and known acquaintances of Fidel Castro as things which could be exploited in efforts to neutralize the Cuban leader (Document 6).
  • Actions of the CIA’s own Cuban exile allies in March 1963 caused the high command to reconsider its alliance with them against Castro

Cyber Brief: Data Policy

This week’s Cyber Brief focuses on a collection of documents related to data privacy and collection. The documents include a complaint filed in the Federal Trade Commission’s 2012 case against Facebook and a recent NATO report highlighting how “inadequate data privacy can allow for malicious actors to track military forces and influence the actions of soldiers.”

TBT Pick: The Scooter Libby File

This week’s TBT pick comes from 2007 and presents the declassified documents introduced as evidence during the trial of Vice President Cheney’s former chief of staff, Lewis “Scooter” Libby. Archive director Tom Blanton discussed the documents with NPR’s Morning Edition, annotating a series of trial exhibits including several in Mr. Cheney’s own handwriting, ranging from his scribbles on a New York Times op-ed piece critical of the administration, to his tasking of the White House press operation to defend Libby against charges of leaking classified information.

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Deloitte Launches FOIA-Processing Software, FOIA Shows Interior Dept. Issued Thousands of Oil Drilling Safety Waivers, and More: FRINFORMSUM 2/28/2019

February 28, 2019

Deloitte Launches FOIA-Processing Software but Improved FOIA Numbers No Guarantee

One of FOIA’s perennial head-scratchers is why agency FOIA offices seem able to search for and review only hundreds of pages of documents a month for release – even when under court order – when existing eDiscovery tools allow lawyers to review tens of thousands of pages of records in a comparable amount of time. Deloitte has launched a new FOIA-processing software based on eDiscovery tools for its government clients as a possible solution to this imbalance. The software, which Matthew Nelson reports is “based on Relativity’s eDiscovery software and hosted in a cloud environment authorized under the Federal Risk and Authorization Management Program,” could be a boon for agency FOIA shops – or it could be a black eye for the accounting firm if agencies’ FOIA numbers continue to be abysmal. It’s not clear which agencies have purchased the Deloitte platform, but knowing the information would be a good first step in seeing just how much of FOIA’s processing delays are technical, or if there’s something more systemic behind them. (A 2017 FOIA search survey developed and circulated by the Archive and the Project on Government Oversight asked FOIA processors – anonymously – what search software their agency used – with only a very small percentage using Clearwell, another eDiscovery platform.)

Interior Dept. Issues Nearly 2,000 Waivers to Obama-Era Offshore Drilling Rule     

After 2010’s Deepwater Horizon oil spill killed ten workers and dumped more than 200 million gallons of oil in the Gulf of Mexico, the Obama administration passed the Well Control Rule. The rule was aimed at tightening safety procedures surrounding blowout preventers, the device that failed in the BP accident. Two years into the Trump administration, however, FOIA-released data shows that the Department of the Interior’s Bureau of Safety and Environmental Enforcement has issued 1,700 waivers, “effectively gutting parts of the regulation before the Trump administration officially rolls them back.”

Exemption 4 SNAP Case Goes to SCOTUS on April 22

The Supreme Court will hear the case of Food Marketing Institute v. Argus Leader Media in less than two months. The upcoming SCOTUS fight concerning public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP) has potentially wide implications for FOIA’s Exemption 4. As Kel McClanahan, Esq., executive director of National Security Counselors says, “A ruling for the requester would mean nothing more than a continuation of the status quo, where business information can only be withheld under Exemption (b)(4) upon a showing of competitive harm. But a ruling against the requester would turn Exemption (b)(4) into some sort of super-exemption, where the mere fact that business information had not previously been made public would suffice to withhold it.” The Department of Justice recently filed an amicus brief in support of an expansive interpretation of the exemption – an unsurprising move considering the department’s willingness to defend any and all agency FOIA positions in court, no matter how feeble.

Census Bureau Cites DOD Reporting as Risk to 2020 Census

A Census Bureau memo obtained by the NAACP through the FOIA outlines new Department of Defense guidance that it says places “the 2020 Census at risk.” In previous years, the Census Bureau added all military members serving abroad to state census totals based on address they provided when enlisting – but the new rule will count deployed troops “as residents of the stateside military installations where they’re usually stationed,” a likely bump for states like North Carolina, Kentucky, and others with large bases. But the Defense Manpower Data Center on whose data the Census Bureau planned to rely is no longer able to report on currently deployed service members – only members who have completed their assignments. The Census Bureau argues the the DMDC restrictions “places us in jeopardy of not having the information necessary to count those who are deployed overseas in the communities in which they live.”

How the Strategic Air Command Would Go to Nuclear War

A recently declassified Strategic Air Command (SAC) checklist sheds brand new light on the procedures that SAC would have followed in the mid-1960s if U.S. nuclear forces had gone to war. The checklist – obtained by independent scholar Robert S. Hopkins III and published by the Archive – provides the first fully declassified details of SAC procedures under Defense Readiness Conditions (DEFCON), from 1 to 5, along with the Emergency War Order red dot messages that would have directed SAC bombers and missiles to launch nuclear strikes against the Soviet Union and other targeted adversaries.

The VICE File

The movie VICE, which recently won one Academy Award and was nominated for seven others, including the best picture Oscar, shows on screen several documents obtained through the Freedom of Information Act. Those documents relate to then-Vice President Dick Cheney’s meetings with oil company lobbyists discussing potential drilling in Iraq. But at least a dozen other declassified records deserve screen time before Sunday’s Oscars show, according to the National Security Archive’s publication of primary sources from Cheney’s checkered career.

The documents show how Cheney built a rap sheet for drunk driving and arranged draft deferments in the 1960s, pitched in on President Gerald R. Ford’s unsuccessful veto of the Freedom of Information Act (FOIA) in 1974, helped undermine investigations of CIA scandals in 1975, excused President Ronald Reagan’s Iran-contra misdeeds in 1987, mistakenly distrusted Gorbachev and slowed the end of the Cold War in 1989, promoted the global hegemon role for the U.S. in 1992, hid his work with oil companies in 2001 to set energy policy, endorsed torture and warrantless surveillance in the 2000s, played a leading role in trashing Iraq and the Middle East from the Iraq invasion in 2003 to the present, mysteriously went whole days at the White House without his Vice President’s office generating any saved e-mail, and presented a danger to civilians whether they were armed or not by shooting his hunting partner in 2006.

The United States and the North Korea Nuclear Threat

Prior U.S. administrations from both political parties wrestled intensively with complex security, economic, and diplomatic challenges in trying to rein in successive North Korean dictators’ nuclear ambitions, a review of declassified documentation makes clear. The Archive presents an array of records from the Nixon, Bush 41, and Clinton administrations that describe the many concerns and tests that have confronted U.S. policymakers and negotiators alike. These records provide essential historical context for recently-ended Hanoi meeting between President Trump and North Korean leader Kim Jong Un.

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Cyber-Attacks and Fire Support: Documents Illustrate Historic Trend in Integration of Military Technology

February 28, 2019

By Michael Martelle

On February 27th RADM(ret.) Bill Leigher, now the director of DoD Cyber Warfare Programs at Raytheon, compared cyber-attacks to the advent of airpower during an Atlantic Council panel discussion on operationalizing cyber strategies. In both cases, militaries struggled to predict how the new technology would be used in wartime and fell back on familiar frameworks. Leigher pointed out that documents on airpower in particular borrowed language from artillery.

Documents released through the Freedom of Information Act related to US military planning for the cyber-offensive against the Islamic State lend support to this comparison. The Concept of Operations (CONOP) for Operation Glowing Symphony specifically called for coordinating cyber-attacks in the same manner as kinetic strikes.


This serves as an operational illustration of how the US Military presently conceptualizes offensive cyber effects. In Joint Publication 3-09 Joint Fire Support, effects in cyberspace are explicitly defined as a form of fire support, despite their non-kinetic nature. While this framework may have been sufficient for coordinating cyber-operations with kinetic effects during Operation Inherent Resolve, it may lose utility as the role of the US Military’s Cyber Mission Force (CMF) expands.

Under a Department of Defense Cyber Strategy calling for a more forward-leaning presence and expanded authorities for action, USCYBERCOM acted to degrade Russia’s ability to interfere in the 2018 midterm elections. By first notifying individual operators that their activities were being monitored, and then directly disabling the networks of the infamous Internet Research Agency, USCYBERCOM has demonstrated an increased capability and willingness to act unilaterally in cyberspace. It is entirely possible that when documents related to these operations are declassified, researchers will find that frameworks derived from fire-support had ceased to be useful.

You can watch the entire Atlantic Council discussion below: