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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:

Obama Library to Depart From Status Quo, Signs of Life for Central FOIA Portal, and More: FRINFORMSUM 2/21/2019

February 21, 2019

The Obama Center will not include a federal presidential library. Instead, all unclassified records will be made available digitally. Picture: The Obama Foundation

For Better or Worse, The Obama Library to Depart From Status Quo

The National Archives and Records Administration has released its agreement with the Obama Foundation that outlines how the Foundation’s plan to depart from the traditional NARA-run presidential library model – in favor of digitizing all of Obama’s 30 million unclassified paper records – will comply with the Presidential Records Act.

While all of Obama’s unclassified documents will be released through both the New Obama Library website and the NARA catalog, there will be no research library on site. This change has prompted concerns that presidential scholarship may suffer, and begs questions about what this model could mean for future presidents unconcerned with preserving “nonpartisan public history,” according to the New York Times.

The reasons behind the Obama Foundation’s decision to abandon the current presidential library model are, to the extent known, varied. Obama’s records are born digital more so than any of his predecessors – the Times cites “some 300 million emails, as well as Snapchat posts, tweets and other born-digital records” will be published electronically in addition to the 30 million paper records. And a new law would have required the Obama Foundation to pay NARA 60 percent of construction costs for federally-run portions of the center, whereas earlier libraries only had to pay 20 percent. NARA’s administration of the presidential library system may also be a factor: the backlogs are extensive; quality and responsiveness varies markedly from one library to another; and the FOIA/MDR process is, as our FOIA director Nate Jones notes, broken.

Last year NARA announced it will be consolidating all of the classified materials from the current 13 presidential libraries – about 75 million pages – in Washington, D.C. for declassification review. NARA argues this will make the declassification of classified presidential library materials more efficient for both historians and NARA’s budget. The NARA/Obama Foundation memorandum of understanding does not address this, but it is likely the New Obama Library will also send its classified materials to NARA.

It remains to be seen whether the Obama Foundation will release the 30 million unclassified pages without redactions, and what the declassification of classified documents will look like without an official Obama Presidential Library to submit FOIA and MDR requests to (though the likely answer is they will be submitted directly to NARA). What is clear is that the current presidential library system is painfully broken for historians, and as long as NARA controls the classified records, historians will have just as tough a time accessing Obama’s most historically significant records.

Signs of Life for Universal FOIA Portal?

The Office of Management and Budget and the Justice Department have told agencies to respond by May 10 with their plans ensuring that their in-house FOIA software will successfully interact with a central FOIA portal. The OMB-DOJ memo “lays out the two ways agencies can achieve interoperability — either by accepting requests through a structured application programming interface (API) or by accepting the request as a formal, structured e-mail to a designated email inbox.” The move comes more than two years after the 2016 FOIA Improvement Act mandated the creation of a central portal for filing and tracking FOIA requests and is a step in the right direction, albeit a belated one. Sean Moulton of the Project on Government Oversight is cautiously optimistic about the guidance, “However, there are some concerns that the memo remains vague about how the interoperability will be achieved,” he said. “I found it odd that the memo didn’t establish more of a structure to oversee the process. There doesn’t seem to be lead agency to make final decisions on anything, nor does it establish an interagency working group to tackle the issue and identify problems and solutions.”

Emails Show How Often Secretary Chao Meets with Kentucky Leaders

More than 800 pages of FOIA-released emails shed light on Transportation Secretary Elaine Chao’s relationships with leaders from her husband’s – Senate Majority Leader Mitch McConnell – home state of Kentucky. The emails, which were obtained by American Oversight and provided to Politico, show that Secretary Chao “met at least 10 times with politicians and business leaders from the state in response to requests from McConnell’s office.” While the records do now show how often Sec. Chao met with leaders from outside of Kentucky, they do show “McConnell’s staff acting as a conduit between Chao and Kentucky political figures or business leaders, some of whom previously have had relationships with the couple.” The Transportation Department insists no favoritism exists for Senator McConnell’s requests, and the Senator’s office notes he “regularly advocates for Kentuckians” with Congress and the Cabinet. If nothing else, “the emails offer a rare glimpse at the working relationship between Chao and McConnell, who aside from a few confrontations with protesters, typically maintain a low public profile about their mutual interactions.”

“Following the Money”

CyberScoop recently highlighted the Archive’s Cyber Project’s posting on North Korea’s 2016 cyberattack against the Bank of Bangladesh that successfully stole $81 million. The Archive’s report and timeline, pieced together by court filings, is notable for showing “how the hackers used low-tech means to launder the money.” As the Archive’s Cyber team notes, “Given the multitude of cyber-enabled money laundering techniques available, including cryptocurrencies and online game economies (which would function similarly to purchasing casino chips), the comparatively analogue manner in which the spoils of one of the largest cyber-heists to date was laundered is remarkable.”

TBT Pick: The Defense Intelligence Agency, Declassified

This week’s #TBT pick is a 2015 posting spotlighting the secretive DIA – one of the government’ largest and least well-known intelligence organizations. Edited by Jeffrey Richelson, the posting highlights 50 notable documents, including: an internal memo about the infamous Iraqi defector known as CURVEBALL and the false intelligence he provided about Iraq’s supposed WMD programs; a 180-page review of the case of DIA analyst Ana Belen Montes, convicted of supplying secrets to the Cubans several analyses of Iraqi and Chinese weapons of mass destruction programs; and descriptions of DIA’s interest in “psychoenergetics” activities such as extrasensory perception, telepathy, and remote viewing.

The posting also features dozens of issues of the DIA’s in-house publication, Communiqué, the DIA’s unclassified, in-house magazine that was available not only to DIA employees but their families, and contained significant information about DIA that the agency often redacted from other documents released in response to Freedom of Information Act requests. Publication was halted in 2013 following a directive from the agency’s director, Lt. Gen. Michael Flynn.

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State Department Makes FOIA Reading Room Less User-Friendly: FRINFORMSUM 2/7/2019

February 7, 2019

The State Department’s old FOIA reading room on top, with searchable and sortable meta filters, and the new, non-sortable version on the bottom.

State Dept. Worsens FOIA Reading Room

The Department of State has inexplicably made its FOIA reading room significantly less user-friendly. The previous version allowed researchers to sort the reading room’s tens of thousands of documents by date or title, among other filters, or search through curated collections. The current iteration has no such features and the documents are now unsortable. The move is a frustrating head-scratcher from an agency that – until recently – had one of the best examples of the kind of FOIA reading room that is required by 2007 FOIA amendments. The change shows, as Alex Howard points out on Twitter, “how technical changes to searchability can degrade public access & impeding the public’s rights to know.”

New NDC Director Announced

The National Declassification Center has a new director. The Archivist of the United States, David Ferriero, announced that William P. Fischer will replace founding director Sheryl Shenberger, who retired early last year. Fischer comes to the NDC from the State Department, where he “led major Department projects including declassification reviews under the direction of the National Security Council such as the Argentina Declassification Review and John F. Kennedy Act initiative.”

The announcement is significant, particularly for historians. The National Declassification Center’s attitude towards releasing historic records – whether it chooses to embrace automatic declassification and end the wasteful practice of multiple equity re-reviews before historic documents are released to the public or whether it continues with the time consuming and inefficient status quo – will determine whether the Center lives up to its mandate to streamline the declassification process. Here’s hoping Fischer doesn’t bring the State Department’s new and un-improved FOIA reading room attitude to the NDC.

What the CIA Tells Congress (Or Doesn’t) about Covert Operations: The Barr/Cheney/Bush Turning Point for CIA Notifications to the Senate

Attorney-General nominee William P. Barr figured prominently in arguments to limit CIA responsibility to provide notification to Congress about covert actions during the 1980s, according to a review of declassified materials published today by the National Security Archive. As the Iran-Contra scandal played out, Barr, who held senior posts at the Justice Department, provisionally supported the idea of the president’s “virtually unfettered discretion” in foreign policy and downplayed Congress’s power of the purse, asserting it was “by no means limitless.”

The issue of notification of Congress about imminent clandestine activities was at the heart of the Iran-Contra scandal when President Ronald Reagan and CIA Director William Casey specifically ordered that lawmakers be kept in the dark about the infamous, covert arms-for-hostages deals with Iran.

Barr was by no means alone in pushing these views, the documents show. Other notable proponents during the Iran-Contra aftermath included then-Congressman Dick Cheney and John R. Bolton, who was also at the Justice Department. After Cheney became vice president he continued to press for extraordinarily broad Executive Branch authority, advising then-President George H. W. Bush to veto the Senate’s intelligence appropriations bill on the grounds it “attacked” presidential prerogatives – resulting in the only known such veto since the CIA’s creation.

FOIA and You: Tips, Tricks, and War Stories

Will you be in the DC area on February 13? If so, join the Archive’s Nate Jones, former ISOO director William Leonard, BuzzFeed News’ Jason Leopold, and others discuss the state of FOIA, tricks to crafting the most successful requests possible, and hear some FOIA “war stories” at CATO’s “FOIA and You” seminar. There will be a livestream available for those who can’t attend in person.

U.S. Ambassadors Dean and Raphel warned Washington unconditional support to Pakistan and fundamentalist factions of mujahedin was destabilizing the region

A New Phase in the Great Game: U.S., Soviets, India, Pakistan vied to shape a new Afghanistan in late 1980s

Two U.S. ambassadors in the late 1980s warned the U.S. government about potentially detrimental developments in Afghanistan in the wake of a Soviet military withdrawal, according to declassified documents obtained and recently published by the National Security Archive.  Ambassador John Gunther Dean in New Delhi highlighted the dangers of unfettered backing for the most hardline rebel factions in Afghanistan, while Ambassador Arnold Raphel in Islamabad pointed out the intent of America’s ally, Pakistan, to exert its influence in this “new phase … in the perennial great game.”

The documents come from the Ambassador John Gunther Dean Collection at the Jimmy Carter Presidential Library and show the delicate dynamics underlying negotiations about the future of Afghanistan on the eve and during the first phase of the Soviet withdrawal that started in May 1988 and was completed on schedule on February 15, 1989.

The declassified records also offer insights into the role of Indian Premier Rajiv Gandhi, mainly through his correspondence with President Ronald Reagan, selections of which are featured in today’s posting

From the Cyber Vault: Congressional Hearing Documents

The Archive’s Cyber Vault recently published witness testimony and transcripts for hearings held by the 115th Congress during 2018. These documents are reflective of the scope of the legislative challenges and Congress’s priorities in the field. The list is ordered by committee, with hearings listed chronologically for each committee. Joint hearings appear at the end of the list for the Senate and the House.

U.S. Secretary of State Henry Kissinger meets with Argentine foreign minister, Admiral Cesar Augusto Guzzetti, at a later meeting on October 7, 1976 (Photo courtesy of Clarí (Argentina))

TBT Pick: Kissinger Gave Strong Support Early on to Argentine Military Junta

This week’s #TBT pick is a 2004 posting of newly declassified documents obtained by the Archive showing that amidst vast human rights violations by Argentina’s security forces in June 1976, Secretary of State Henry Kissinger told Argentine Foreign Minister Admiral Cesar Augusto Guzzetti:

“If there are things that have to be done, you should do them quickly. But you should get back quickly to normal procedures.”

Kissinger’s comment is part of a 13-page Memorandum of Conversation reporting on a June 10 meeting between Secretary Kissinger and Argentine Admiral Guzzetti in Santiago, Chile.

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“This was a key moment that raised the Soviet sense of threat”: Declassified Documents Show Moscow’s Fear of an Afghan Flip: FRINFORMSUM 1/31/2019

January 31, 2019

The Soviet Invasion of Afghanistan, 1979: Declassified Documents Show Moscow’s Fear of an Afghan Flip

President Trump’s claim that the Soviet Union invaded Afghanistan in 1979 to get rid of terrorists who were coming over the border is false, according to declassified U.S. and Soviet documents released through FOIA and posted by the National Security Archive. Just as false, according to the documents, were the repeated U.S. media assertions at the time, driven by President Carter’s national security adviser Zbigniew Brzezinski, that the Soviet motivation was “the age-long dream of Moscow to have direct access to the Indian Ocean.”

Soviet Politburo documents that first became available in the 1990s show the real Soviet fear was that the head of the Afghan Communist regime, Hafizullah Amin, was about to go over to the Americans. (Egyptian president Anwar Sadat famously flipped in 1972, ejected thousands of Soviet advisers, and became the second largest recipient, after Israel, of U.S. foreign aid.)

The New York Times’ Peter Baker featured the documents in a recent article that provides an important history lesson for the current president. “This was a key moment that raised the Soviet sense of threat,” Archive director Tom Blanton says. “It’s a fascinating case study of the necessity in all of these international affairs of putting yourself in the other guy’s place — what does it look like over there?”

Dept. of the Interior Proposed FOIA Regulations Now Closed to Public Comment

The comment period has ended for the Department of the Interior’s proposed FOIA regulations changes. The proposed rule changes – 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. Time will tell whether DOI takes public concern into account when drafting the final rule, which must be sent to Congress and the Government Accountability Office before it goes into effect. As the Federal Register notes, Congress can address concern about new rules “by 
restrictions.” The National Security Archive signed onto Citizens for Responsibility and Ethics in Washington’s (CREW) comments opposing the rule change.

Prosecutor’s Office Charged $36,000 for Denying Open Records Request

Cole County Prosecutor Mark Richardson’s violation of Missouri’s Sunshine Law is costing his office $36,000. Richardson unlawfully told Aaron Malin that the records Malin sought in his open records request (communications between the prosecutor’s office and the local drug task force) were “closed under the law.” The Western District of the Missouri Court of Appeals unanimously upheld a lower court ruling finding and awarded Milan $12,100 in damages and over $24,000 in attorney fees. In her ruling, Cole County Circuit Judge Patricia Joyce wrote that Richardson violated the open government statute “with full awareness of the consequences and conscious design to violate the law.” Richardson is a licensed attorney and municipal court judge who taught a class for state agency officials how to respond to public records requests.

Maryland FOI Request Shows University Commission Members Profited from Probe into Football Player’s Death

A FOIA request from Washington Post sports writer Rick Maese won the release of 110 pages of invoices showing members of a special commission investigating the death of University of Maryland football player Jordan McNair billed the university $1.57 million – “with four of eight members of a special commission billing the university more than six figures apiece for their two months of work.” The 192-page report, which was the ultimate product of a commission charged with determining if the football program was toxic, made no personnel recommendations in the wake of the death, but the Marylan board of regents relied on the report to retain head coach DJ Durkin. The decision prompted swift and immediate backlash, and Durkin was fired the next day.

Bill to Eliminate PACER Fees to be Introduced

Representatives Doug Collins (R – GA) and Mike Quigley (D – IL) are reintroducing the Electronic Court Records Reform Act (ECRRA), which would do away with PACER fees, next week. PACER currently charges users 10 cents a page when downloading documents, and in 2015 courts collected $150 million in PACER fees, more than it costs to run the site. The bill would make the records available within a 5-day deadline, allegedly to address privacy concerns, and mandates the records be posted in a searchable, machine-readable format. The posting delay is not ideal and filed documents should be immediately available to everyone, but the bill will nonetheless improve access to court records and bring greater transparency.

The FBI’s Roger Stone File

The recent indictment of Roger Stone, aptly described by national security journalist Emma Best as a “serial bagman”, is a good opportunity to highlight a September 2018 article Best wrote that details Stone’s “long history of finding himself entangled in FBI investigations into election meddling, political sabotage, and espionage.” Best and Property of the People published 10 FBI documents on Stone’s role as the Nixon campaign bagman, including a copy of the FBI’s interview with Stone. Best says, “The FBI documents include a list ‘highlights’ of acts of political sabotage in which Stone was either directly involved or served as the handler for the relevant operative. In one case, Stone sent 200 Democrats invitations to a non-existent primary campaign breakfast… In yet another, Stone saw to it that phone lines used by a Democratic primary campaign were tampered with. This resulted in Democratic failure to contact many potential voters, while others were potential voters were inadvertently contacted ‘numerous times.’”

Read the documents here.

FOIA and You: Tips, Tricks, and War Stories

Will you be in the DC area on February 13? If so, join the Archive’s Nate Jones, former ISOO director William Leonard, BuzzFeed News’ Jason Leopold, and others discuss the state of FOIA, tricks to crafting the most successful requests possible, and hear some FOIA “war stories” at CATO’s “FOIA and You” seminar. There will be a livestream available for those who can’t attend in person.

The cover page of the NSA’s Top Secret report on the USS Pueblo.

TBT Pick –The USS Pueblo

This week’s #tbt pick is chosen with recent release of new information on the USS Pueblo (in response to a Mandatory Declassification Review request) in mind. The Pueblo’s capture was an intelligence breach of enormous proportions, and, followed by the downing of a US reconnaissance EC-121 plane over the Sea of Japan in 1969 by a North Korean MiG-17, encouraged the Nixon Administration to develop contingency plans that would allow the use of tactical nuclear weapons against Pyongyang. Sailors from the Pueblo are pushing for compensation in the wake of Congress awarding $4.4 million to each of the American hostages held for 444 days in Tehran, although some worry that a lack of awareness about the incident may hamper their efforts. A 2014 Archive posting co-authored by Archive senior fellow John Prados and author Jack Cheevers shows, among other things, that “A small committee secretly appointed by LBJ to get to the bottom of the Pueblo debacle criticized the planning and organization of the ship’s mission. But the committee’s blunt report, which was initially to be given to Congress, was instead ordered destroyed by Defense Secretary Clark Clifford.”

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