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FRINFORMSUM 3/13/2014: Senators Grill DOJ’s Top FOIA Officer and Express Concerns the DOJ doesn’t Act According to Obama’s “Day One” Transparency Promise, and Sen. Feinstein Finally Condemns an Intel Agency’s Snooping –If Only Because it was on her Staff

March 13, 2014
Bigger stretch: Rose Mary Wood's?  Or the DOJ's 94.5 FOIA release claim?

Bigger stretch: Rose Mary Wood’s? Or the DOJ’s 94.5 FOIA release claim?

The Center for Effective Government (CEG) has released a FOIA report finding that eleven of the largest fifteen agencies that process the most FOIA requests received a grade of a D or an F.  The report raised some eyebrows in the open government community by giving the Department of Justice the second best overall score (a B minus, hardly an Ivy League Grade).  In our view, this inflated grade was largely due to CEG’s reliance on misleading metrics used by the DOJ itself in its reports to “cheerlead” a picture of FOIA that is rosier than reality.  As Unredacted pointed out last year, DOJ’s reported 94.5% release rate is a farce concocted by cooking its books to not count inadequate searches, “fee bullying,” and other administrative tactics used to increase FOIA denials without counting them among their statistics.  While CEG’s intense data collection is to be congratulated, the results don’t match up to the FOIA behavior we see every day from some of the agencies that CEG graded.

Melanie Pustay revealed in her Senate Judiciary hearing that her office will be spearheading the creation of a government-wide set of FOIA regs

Melanie Pustay revealed in her Senate Judiciary hearing that her office will be spearheading the creation of a government-wide set of FOIA regs

Members of the Senate Judiciary Committee grilled the Department of Justice’s Director of Information Policy, Melanie Pustay, during their March 11, 2014, FOIA hearing. According to its website, Pustay’s office “is responsible for encouraging agency compliance with the Freedom of Information Act (FOIA) and for ensuring that the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines are fully implemented across the government.”  During the hearing, however, ranking member Sen. Chuck Grassley (R-IA) voiced concern that the Department of Justice in particular acted in ways that are contrary to President Obama’s transparency promises. Yet, in response to a question from Sen. Blumenthal (D-CT), Pustay, revealed that her office was spearheading the project to create a standardized, government-wide set of FOIA regulations, which it hopes to complete “in a year or two.” Open Government advocates will be paying close attention to any such development to ensure that any standardized FOIA regulations follow best practice guidelines –not the DOJ’s.

Sen. Dianne Feinstein publicly accused the CIA of spying on her staff on the Senate floor. Photo: Bill Clark/CQ Roll Call

Sen. Dianne Feinstein publicly accused the CIA of spying on her staff on the Senate floor. Photo: Bill Clark/CQ Roll Call

The feud between the Senate Intelligence Committee and the CIA further escalated this week when Committee Chairwoman, Sen. Dianne Feinstein (D-CA) launched a blistering attack against the agency on the Senate floor. Sen. Feinstein accused the agency of concealing –then deleting– documents that the Senate Intelligence Committee was reviewing for its still-secret 6,000 page report on the agency’s now defunct torture program. The report has taken more than four years to complete, and has cost more than $40 million –partially because the CIA insisted that Committee staff only be allowed to review classified materials pertinent to the investigation at the agency’s secure facility in Northern Virginia, “[a]nd only after a group of outside contractors had reviewed the documents first.”

In response to the Senate’s spying allegations, the CIA general counsel, Robert Eatinger, filed a crimes report with the DOJ against the Senate Committee staff, accusing staffers of illegally accessing CIA networks they were not authorized to view. During her Senate speech, Sen. Feinstein noted that  “[f]or most, if not all, of the CIA’s Detention and Interrogation Program, the now acting general counsel was a lawyer in the CIA’s Counterterrorism Center—the unit within which the CIA managed and carried out this program. From mid-2004 until the official termination of the detention and interrogation program in January 2009, he was the unit’s chief lawyer. He is mentioned by name more than 1,600 times in our study. And now this individual is sending a crimes report to the Department of Justice on the actions of congressional staff—the same congressional staff who researched and drafted a report that details how CIA officers—including the acting general counsel himself—provided inaccurate information to the Department of Justice about the program.”

It’s worth noting that Sen. Feinstein has previously defended the National Security Agency’s (NSA) domestic dragnet surveillance practices, and only called out the CIA for its spying “after her staff was spied on and had key documents withheld and then reclassified.” Even though Sen. Feinstein may only be calling out the CIA because her staff was personally affected, hopefully this intelligence overreach will jar “Congress awake so that it resumes its role as overseer of the spies.”

Happy FOIA-ing!

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