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Reporter Carol Rosenberg’s FOIA Request Changes Course of al-Nashiri Trial: FRINFORMSUM 4/19/2019

April 19, 2019

FOIA Request Shows Al-Nashiri Trial Judge Secretly Sought DOJ Position  

In a remarkable turn of events, the Court of Appeals for the D.C. Circuit “threw out every single pre-trial order issued over the past three-and-a-half years in the case of Abd Al-Rahim Hussein Muhammed Al-Nashiri,” the alleged USS Cole bomber currently being tried by a military commission at Guantanamo. Steve Vladeck has a superb write-up of the unanimous ruling (that also includes every single order on appeal), which comes after the disclosure that the former trial judge presiding over the al-Nashiri case, Air Force Colonel Vance Spath, was applying for -and negotiating the terms of- a position with the Justice Department as an immigration court judge. He kept his job application secret from all parties, a gamble that could call into question Spath’s partiality. Vladeck notes that a FOIA request filed by reporter Carol Rosenberg “turned up the very documents pertaining to Spath’s candidacy for a position as an immigration judge that the government had refused to disclose” and led to this week’s ruling.

The National Security Archive filed a FOIA lawsuit for CIA director Gina Haspel’s torture cables, which describe graphic acts of deliberate physical torture -including the waterboarding of al-Nashiri- when she was chief of base at a CIA black site in Thailand in 2002. Although the CIA redacted Haspel’s name and those of the CIA contract psychologists James Mitchell and Bruce Jessen who administered the waterboard from the release, other declassified documents (including the 2004 CIA Inspector General report) and public statements confirm their leadership of the torture of alleged terrorist Abd al Rahim al-Nashiri at the black site between November 15 and December 4, 2002.

Exemption 4 Case Heads to SCOTUS

The Supreme Court will hear oral arguments in the case of Food Marketing Institute v. Argus Leader Media this Monday. The case, which Argus Leader outlines here, concerns public access to sales figures for the Supplemental Nutrition Assistance Program (SNAP) and has potentially wide implications for FOIA’s Exemption 4. National Security Counselors’ Kel McClanahan 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.

Redactions: The Declassified File – Mueller Report Censorship Raises Question: What’s the Government Hiding?

This Joint Staff memo concerns a revised National Security Decision Directive​ on U.S. strategy toward the Soviet Union. The version on the left was released in 2016 but contains heavy redactions that reviewers did not consider necessary in 2010 when they declassified the version on the right in full.

The release of the redacted Mueller report focuses new public attention on the systemic problem of over-classification and the routine overuse of exemptions to the Freedom of Information Act that are supposed to be reserved for protecting true secrets. To provide background to the problem, the National Security Archive posted just a small selection from the hundreds of “dubious secrets” it has published over the years in which U.S. government censors blacked out documents that had already been released in full or redacted entirely different parts of the same document at different times. The examples show how subjective the classification process is and how often agency declassifiers opt for the most sweeping rulings that wind up denying any reasonable access to U.S. government information.

Much of the Mueller report was redacted with the justification that release would cause “Harm to Ongoing Matter,” which refers to ongoing trials and investigations, like that against Roger Stone. The bright side of this justification is that once these cases are completed, those redactions should be easily stripped back.

Nuclear Stockpile Information Censored by Pentagon for 1st Time in Years

The Pentagon is denying a request to declassify the current size of the US nuclear stockpile, despite having released the information to the Federation of American Scientists on an annual basis since 2010 – and without any harm to national security as a result. Steve Aftergood reports, “Because the current size of the U.S. nuclear stockpile constitutes so-called ‘Formerly Restricted Data,’ which is a classification category under the Atomic Energy Act, its declassification requires the concurrence of both the Department of Energy and the Department of Defense. In this case, DOE did not object to declassification but DOD did.” The DOD gave no rationale for denying the release, but one official “said the problem was that one of the main purposes of the move to declassify the stockpile total — namely, to set an example of disclosure that other countries would follow — had not been reciprocated as hoped.”

Hans M. Kristensen, director of FAS’ Nuclear Information Project, says, “The decision walks back nearly a decade of U.S. nuclear weapons transparency policy.”

NYPD Accidentally Releases Documents on Facial Recognition Technology

A judge is ordering a FOIA requester to return 20 pages of documents on the NYPD’s facial recognition technology the police say they accidentally released.  The order, which said the agency “should be more diligent,” is the latest development in a two-year FOIA suit brought by the Georgetown Center on Privacy and Technology and that has already revealed “that anyone arrested by the NYPD is potentially subject to face recognition searches.”

The NYPD initially told researchers that they couldn’t find any responsive records to their request, but has now, two years and a lawsuit later, released nearly 4,000 pages of records. Also during the course of the suit, “The NYPD delivered a Powerpoint presentation on the department’s Facial Identification Section to people who paid $1,695 to attend a conference in Sept. 2018 — but then claimed the same information was too sensitive to disclose through the lawsuit.”

FOIA Request Sheds Light on Smollett Investigation  

A FOIA request from the Chicago Tribune won the release of thousands of texts and emails (but not internal files) from the Cook County State’s Attorney’s office on the investigation into Empire actor Jussie Smollett, who “had been indicted on 16 counts of disorderly conduct on charges he staged a hate crime attack on himself.” The majority of the documents don’t discuss the substance of the case or the decision to dismiss the charges against Smollett, “But they show that the office was largely caught flat-footed by the massive response from the news media to its own stunning reversal.” Assistant State’s Attorney and the lead prosecutor in the case, Risa Lanier, texted shortly after the charges were dropped, “Just wish I could have anticipated the magnitude of this response and planned a bit better!”

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U.S. Completes Historic Transfer of 47,000 Declassified Documents to Argentine Government: FRINFORMSUM 4/12/2019

April 12, 2019

The Archive’s Carlos Osorio poses with the CDs containing more than 40,000 declassified documents.

Declassification Diplomacy: Trump Administration Turns Over Massive Collection of Intelligence Records on Human Rights and Argentina

Today in a diplomatic ceremony hosted by U.S. Archivist David Ferriero at the National Archives, U.S. officials completed the turnover of some 7,500 CIA, FBI, DOD, NSC and State Department records—47,000 pages in total—to Argentina’s Minister of Justice and Human Rights, German Garavano. Ferriero said that reviewers worked for a total of 32,000 hours to complete the task, which began during the Obama administration and was completed under the Trump administration, and were able to release the documents 97% unredacted.’s Argentina Declassification page

Garavano graciously thanked the Trump administration for fulfilling a formal request for the records by the Argentine government, made on the fortieth anniversary of the military coup during a state visit to Argentina by then-President Barack Obama. The National Security Archive’s Carlos Osorio delivered stirring remarks at the event, saying “The release of these documents stands as a uniquely valuable contribution to the cause of human rights, the cause of justice and the cause of our fundamental right-to-know.”

The National Security Archive posted a selection and analysis of 18 key documents from the release, as well as a timeline of Osorio’s 20-year effort to work towards the documents’ release. The records will provide a historical record that is highly likely to impact future efforts toward accountability in Argentina, provide long-awaited information for victims and their families, and advance the next generation of analysis and scholarship on the military era.

Left: a previously declassified, redacted version of an FBI report on the abduction and murder of two Cuban Embassy officers in Buenos Aires; right: The unredacted version released as part of the Argentina Declassification Project.

Classification Leaks Reach New Heights During Trump Administration

Justice Department data released in response to a FOIA request from Steve Aftergood shows that leaks of classified information that were reported as potential crimes have reached record highs in the Trump administration – 120 in 2017 and 88 in 2018. The Obama administration had an average of 39 leaks per year from 2009 to 2016, with the largest number, 55, coming in 2013. Aftergood notes that the released data poses several important questions, including how many leak referrals triggered an FBI investigation, and “whether the leaks are evenly distributed across the national security bureaucracy or concentrated in one or more ‘problem’ agencies (or congressional committees).”

Kissinger State Department Insisted that South Koreans Break Contract with French for Reprocessing Plant

South Korea’s bid to acquire nuclear weapons capability posed a complex challenge to the Ford administration during the mid-1970s, according to recently declassified documents published by the Archive. The South Korea case is of interest as one of several nonproliferation concerns at the time and for its illustration of the range of security, diplomatic, and political tests that have confronted different U.S. administrations in the nuclear sphere.

The new records, which were obtained from the U.S. National Archives through the Mandatory Declassification Review process, provide fresh details about Washington’s ultimately successful response, which was to press the Park Chung-hee dictatorship persistently to break a contract with France for a plant that could provide plutonium for a nuclear weapon.  According to one of the documents, the Koreans tried to argue that the proposed plant would not produce “weapons grade” plutonium, but the State Department countered that “normal reactor grade plutonium could be used in sophisticated bomb designs or … even in less sophisticated weapons.”

Is Our National Security Past Too Sensitive to Make Public?

On February 21 the Nonproliferation Policy Education Center held a conference discussing “Our National Security Past: Too Sensitive to Make Public?” with four expert presenters. William Inboden, Executive Director of the Clements Center for National Security at the University of Texas at Austin, addressed “The Perverse Incentives for Classification,” Richard Immerman, Director Emeritus at the Center for the Study of Force and Diplomacy at Temple University, remarked on “How the System of Declassification is Crashing,” Columbia University’s Robert Jervis addressed “What Factors Contributed to Ending the CIA’s 25-Year Document Review Program,” and Harvard’s Belfer Center’s William Tobey talked about “The Importance of Historical Documents for Current Policy Analysis.” The entire video can be enjoyed here.

Cyber Brief: IA Newsletter: The 1990s DOD Information Assurance Periodical

This week’s Cyber Brief highlights the Department of Defense Information Assurance Technology Analysis Center’s quarterly newsletter. Begun in 1997, its stated goal was to support U.S. information superiority efforts in accordance with the Joint Chiefs of Staff’s Joint Vision 2010 (JV2010) warfighting concept. The publication, which began in 1997, captures discussions and concerns about information security during and in the aftermath of events like Eligible Receiver 97Moonlight Maze, and Solar Sunrise.

TBT Pick – Carlos Osorio Human Rights Work Honored by Argentine Embassy

This week’s #TBT pick is a 2015 posting that highlights Carlos Osorio’s ongoing human rights work in Argentina. The posting commemorates a special award the Argentine Embassy gave Osorio in March 2015 for his work in providing critical documentary evidence and testimony to numerous high-profile trials in Argentina aimed at uncovering and prosecuting human rights violations by the military junta from 1976-1983. Argentine Ambassador Cecilia Nahon presented the award, which praises Osorio’s “contribution in the fight for human rights during the Argentine civic-military dictatorship.”

Addressing representatives from the international diplomatic community, Osorio described his work over the past 15 years to collect tens of thousands of U.S. government records and to provide evidence in various Argentine legal forums. He recounted testifying for two days only two weeks earlier in Buenos Aires before the tribunal judging the Operation Condor Case, and analyzing for 10 hours the contents of a hundred documents from sources as varied as the CIA, Defense Intelligence Agency, State Department, the Paraguay Archive of Terror, and the Chilean former secret police, DINA.

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GAO to Review FOIA Compliance Thanks to Bipartisan Congressional Request, and More: FRINFORMSUM 4/4/2019

April 4, 2019

Bicameral, Bipartisan Letter Seeks GAO Review of FOIA Compliance  

Representatives Elijah Cummings and Jim Jordan were joined by Senators Dianne Feinstein, Patrick Leahy, Chuck Grassley, and John Cornyn in sending a letter to the Comptroller General at the Government Accountability Office requesting the GAO “conduct a comprehensive review of agency compliance with the Freedom of Information Act.” The letter notes that “some agencies are not fully implementing the 2016 improvements and continue to burden requesters with unlawful delays and denials,” and cites a 2018 GAO report showing that 18 agencies have “implemented only half of the FOIA requirements” the report reviewed for.

In their request for a comprehensive compliance review, the House and Senate leaders ask the GAO examine, among other things, how (if) agencies apply the foreseeable harm standard, and agencies’ use of FOIA’s Exemption 3, an expansive exemption that captures “the various nondisclosure provisions that are contained in other federal statutes.” The nondisclosure provisions are so numerous that they are a large part of the reason why the FOIA doesn’t effectively have just its nine statutory exemptions – it has more than 200 – including one about watermelon production data. Statutory exemptions give the DIA, NSA, DOD components, and others far more leeway to hide information than other agencies.

The GAO request comes a month after Representative Cummings and Senators Grassley, Leahy, and Cornyn 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.

Lawsuit Targets Prepublication Review System

The Knight First Amendment Institute at Columbia University and the ACLU are challenging the prepublication review system in federal court. The unique suit targets the entire system – which requires former intelligence and military officials to submit any fiction or nonfiction writing that relates to their government work to government censors for review to ensure no government secrets are disclosed – rather than a specific piece of writing. The plaintiffs argue that the system, which was initially limited to a select group of CIA employees but is now a routine part of obtaining a security clearance, is “dysfunctional,” ambiguous, and restricts free speech and due-process rights.

A FOIA request to the CIA underscores one of the system’s problems: its growing backlog. The request won documents showing that “the agency went from reviewing about 1,000 pages a year in the early 1970s to about 150,000 in 2014.” The insight into the system is rare. Just Security has argued that the major hurdle in fixing the system is lack of information on how it works, making it difficult to suggest fixes for “egregious delays, overbroad censorship, and discrimination against those who seek to speak critically of the government.”

In 2017 Congress mandated the Office of the Director of National Intelligence come up with a new system to streamline the prepublication review system to make it more uniform across the government and more timely, but no new policy has yet been announced.

Arlington County Agrees to Give Amazon Advance Notice of FOIA Requests and Requesters Personal Information

Arlington County and the state of Virginia both plan to give Amazon – which will be opening one of its HQ2 locations in the Northern Virginia suburb – notice when someone files a FOIA request concerning the company. The FOIA heads-up is part of “a $23 million incentive package the County Board unanimously approved last month to lure the company and its promise of at least 25,000 jobs to the county.” The deal gives Amazon at least a two-business day warning and potentially gives the company time to file a reverse-FOIA lawsuit to prevent the information’s disclosure. The county also doesn’t plan to redact FOIA requesters personal information before forwarding the request to Amazon.

Megan Rhyne of the Virginia Coalition for Open Government says the agreement with Amazon is different than deals the county has made with other large companies, like Nestle. Rhyne says, “the language specifying the warning window (48 hours) and requiring Arlington to only release only the ‘mandatory’ records is new,” further noting that “By doing something different usually there is an intent to do something different.”

Declassified U2 Photos Help Archaeologists

Declassified images from U2 spy planes are helping archaeologists “locate and study sites of historical interest that have since been obscured or destroyed” – like images of Aleppo from 1959 or Mosul from 1958. Steve Aftergood recently reported on the work, noting it “extends previous efforts to apply CORONA spy satellite imagery, declassified in the 1990s, to geographical, environmental and historical research. But the U2 imagery is older and often of higher resolution, providing an even further look back.”

Cyber Brief: Foundations of the Internet: TCP/IP Research by The Department of Defense

This week’s Cyber Brief focuses on the foundations of the internet – Cold War-era research and development performed by the Defense Advanced Research Projects Agency and researchers associated with the Department of Defense’s ARPANET. The six highlighted documents come from the Defense Technical Information Center and provide a glimpse into the research that made the internet possible.

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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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