The CIA Misapplies FOIA Exemptions to Continue its Covert Attack on Mandatory Declassification Review. And Why it Matters.
On Friday September 23, 2011, the Central Intelligence Agency snuck two pages into the Federal Register –without a notice for public comment. These two pages allowed the CIA –overnight, without informing anyone– to decree that declassification reviews would now cost requesters up to $72 per hour, even if no information is found or released. To even submit a request –again, even if no documents are released– the public would have to agree to pay a minimum of $15.
The Agency made this change to price the public out of submitting Mandatory Declassification Review requests because it wanted to avoid the independent accountability and oversight that the Mandatory Declassification Review process provides. Unlike the Freedom of Information Act, adverse MDR responses are subject to review by the Interagency Security Classification Appeals Panel (ISCAP), which regularly overturns CIA denials. According to the US Information Security Oversight Office, ISCAP officials have overruled agency classification decisions more than 70 percent of the time since 1996. Because the CIA, by all appearances, resents that the public can turn to an independent panel to question and overturn its dubious classification decisions, the Agency is attempting to charge outrageous fees to deter citizens from requesting information. The previous Agency regulations said MDR review fees must mirror FOIA fees, a much fairer and cheaper fee structure.
Fortunately, after thirty-six groups signed on to fight to force the CIA to repeal its regulations (and after Kel McClanahan of National Security Counselors filed a still-ongoing lawsuit showing this secret regulations change was illegal), the CIA “as a courtesy to requesters…has decided not to charge fees under the new [Mandatory Declassification Review] regulation while judicial review of the regulation is pending.”
But the Agency is still abusing Freedom of Information Act to hide its justifications and reasoning for why it chose to change its regulations to attempt to price out requesters and directly contradict the “New Era of Open Government.”
After the National Security Archive learned about the CIA’s unannounced effort to price out citizens from submitting MDR requests, we filed a Freedom of Information Act request for the “emails, memos, position papers, power point presentations, and reports” about the agency’s decision to radically change its MDR fee structure. We filed a FOIA, rather than an MDR, because the documents we requested were not classified, as they did not relate to US National Security. (–Wait for it…)
The Agency responded that an unspecified amount of “material” was located and withheld under an (illegally) unspecified b(3) statute and under the b(5) “withhold it because you want to” predecisional exemption.
ED NOTE: (READ UP ABOUT THE “WITHHOLD IT BECAUSE YOU WANT TO” EXEMPTION RIGHT AWAY AND URGE YOUR SENATOR TO PASS THE FOIA IMPROVEMENT ACT WHICH FIXES IT. THE ACT HAS BIPARTISAN SUPPORT, HAS ALREADY PASSED THE HOUSE, AND HAS A VERY GOOD SHOT AT BECOMING LAW.)
Of course, we appealed. Then, this week we got another bizarre response from the Agency. The Agency stated that litigation about the documents by another party had concluded. Strangely, the Agency also changed the justification it used to withhold the documents from b(3) and b(5) (predecisional) to b(3) and b(1) (National Security)!
The list of titles of the “material” withheld shows none of the documents are classified, and that none could conceivably “cause harm” to US National Security.
The CIA’s pernicious behavior was even more evident when the National Security Archive found the “other party” that was litigating these documents’ release. It was the above-mentioned Kel McClanahan. He passed along the Vaughn Index1 created in response to his litigation.
According to the Vaughn index in McClanahan’s court case, the documents in question were withheld under b(5) and b(3) exemptions. McClanahan told me that the Agency argued vociferously in court that the release of documents on why the Agency changed its MDR fee structure would have a “chilling effect” on Agency morale, and thus must be withheld under “predecisional” exemption 5. An argument that the Agency bizarrely dropped in my case.
McClanahan’s Vaughn index shows that when dealing with him, the agency did not evoke the b(1) National Security exemption. And according to the Vaughn index, only CIA employee names, office locations, and phone numbers needed to be redacted.
In short, the Agency either sloppily applied its exemptions to hide why it changed its MDR fees; arbitrarily applied its exemptions to hide why it changed its MDR fees; or both.
The result is that a policy change that should have been explained and debated in public in the first place was not. And after the public used to last resort of the Freedom of Information Act to attempt to discover what happened, the Agency abused that law to hide its policy change as well.
The Agency’s Information and Privacy Coordinator Michelle Meeks signed the denial letter. She was chosen to sit on the US government’s FOIA Advisory Committee, a committee established to “to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” I planned to ask her about here agency’s new, retrograde declassification fees at the Advisory Committee’s first meeting, but she did not attend.
Likewise, the National Security Archive brought our concerns to the White House, to the Information Security Oversight Office responsible for “the oversight of the Government-wide security classification,” and to the Public Interest Declassification Board established “to promote the fullest possible public access to a thorough, accurate, and reliable documentary record of significant U.S. national security decisions and activities.” All demurred, unwilling or unable to curtail the CIA’s anti-transparency pivot.
In the end, the lack of oversight that allowed the CIA’s covert attack on Mandatory Declassification Review is endemic of the lack of oversight of the Agency overall. When an agency is allowed to secretly change its processes to price out members of the public who request that previously secret information be declassified, it is no surprise that it is also allowed to ignore requirements to publish budget information, to install email requesting runarounds that would make Joseph Heller sigh, to extrajudicially assassinate Americans oversees (including an innocent sixteen-year-old), to establish black torture sites, to spy of the Senate staffers writing a report on CIA torture, and to then decide, itself, which portions of the Senate report on the CIA’s torture the public should be allowed to see.
If the government officials charged with overseeing the Central Intelligence Agency are unable or unwilling to force easy policy corrections, such as not secretly attempting to price out Declassification Reviews, there is no reason to hope that Agency overseers are capable or willing to prevent the CIA from committing its much more horrendous activities.
1. A Vaughn Index is a list and brief description of withheld documents that a requester can obtain only if he sues in court. An agency is required only to give a document count to requeters who don’t sue (and in this case, the CIA broke the law and did not even provide the National Secruity Archive that).↩
CIA Not Disclosing Unclassified Info to Fed Transparency Site, Snowden Left the NSA “Bread Crumbs” to Help Determine Which Documents He Copied, and More: FRINFORMSUM 8/14/2014
A recent Government Accountability Office (GAO) data transparency report revealed that the CIA is one of four agencies that does not disclose contracting data on its unclassified programs to the federal transparency site, USAspending.gov, although there is no guidance that clearly exempts the agencies from doing so. The CIA in particular refuses to disclose the information on the grounds that its unclassified programs support its classified ones, and that “reporting on the former inexorably leads to insights about the latter.” This reasoning is commonly known as the “mosaic effect,” and is regularly used to deny FOIA requests. The GAO report cautions, “Without clear OMB guidance to define the type of appropriated funds exempt from reporting or how to report information on unclassified awards that raise concerns related to intelligence operations, it is unclear whether justifications from each of the four agencies for not reporting its contracts are appropriate.”
One of 38 documents declassified thanks to an Electronic Privacy Information Center (EPIC) FOIA request reveals a former surveillance court judge’s criticism of a now defunct National Security Agency (NSA) surveillance program. The Wall Street Journal reported that former Foreign Intelligence Surveillance Court (FISC) judge John Bates, who now sits on the United States District Court for the District of Columbia, rebuked “the NSA’s ability to manage its own top-secret electronic surveillance of Internet metadata—a program the NSA scrapped after a 2011 review found it wasn’t fulfilling its mission.” Bates criticized the program, which had trouble collecting the “to” and “from” information from emails, for repeated “long-standing and pervasive violations of the prior [court] orders in this matter,” and chided NSA staff for its “widespread ignorance of the rules.” Bates, however, ultimately reauthorized the program.
A federal judge in California recently ruled that the government does not need to disclose FISC orders on which phone companies the government requests customer records from. The ruling came in response to an Electronic Frontier Foundation (EFF) lawsuit, which argued both that “the government had already declassified hundreds of pages of other documents discussing data collection under the U.S. Patriot Act,” and “statements by people affiliated with the government, including a former member of a technology review panel who said ‘telephone companies like Sprint, Verizon, and AT&T’ were required to turn over records to the NSA, justified the disclosures.” Judge Yvonne Gonzalez Rogers, however, ruled that releasing such information could “provide a roadmap” for those eager to evade surveillance, and that “Official confirmation of the existence of or general information about an intelligence program does not eliminate the dangers to national security of compelling disclosure of the program’s details.”
In a recent Wired interview, former NSA contractor Edward Snowden revealed to the original NSA chronicler James Bamford that he left the NSA “bread crumbs” that could have helped the agency determine which files he copied, and which he merely “touched.” Snowden claims to have done this to show the agency he was acting alone and to help it “minimize the national security risks created by the documents’ public release.” Snowden and his lawyer believe the government’s continued insistence that he copied as many as 1.7 million documents “is a sign that the agency has either purposely inflated the size of his leak or lacks the forensic skills to see the clues he left for its auditors.”
The Washington Post obtained copies of reports indicating both systemic abuse of the US Patent and Trademark Office’s award-winning telework program, and that the Patent Office’s attempt to conceal the damning findings from the Commerce Department Inspector General (IG). The Patent Office employs roughly 8,3000 patent examiners, about half of whom work from home, and began an internal investigation after receiving a whistleblower complaint that many examiners were lying about their hours and receiving bonuses for work they never completed (as experts in their field, patent examiner salaries are near the top of the federal payscale). The Patent Office’s internal investigation determined that oversight for the program was “completely ineffective” and raises “‘fundamental issues’ with the business model of the patent office.” The version of the report provided to the Commerce Department IG, however, was “far less conclusive, saying that managers who were interviewed held ‘inconsistent’ views on whether examiners were gaming the system.”
Harris Corporation has filed an official complaint with the GAO to protest the FBI’s $500 million no-bid award to Motorola Solutions, which controls an estimated 80 per cent of the emergency communications equipment market, to upgrade the bureau’s aging radio network. Harris Corp. specifically complained that the FBI’s claim that Motorola’s software was proprietary and prevented it from interacting with other systems was untrue. Last month House Democrats asked the Department of Homeland Security’s Inspector General to investigate McClatchy’s allegations that “Motorola’s contracting tactics have led state and local governments to squander millions of dollars on the company’s pricey two-way emergency radio systems.”
The Wall Street Journal reported last week that the Defense Intelligence Agency (DIA) is increasingly relying on “open source” information on social media for intelligence gathering. Despite risks of violating Americans’ privacy rights, “For the past 18 months, the U.S. has invested heavily in ways to collect and examine social-media postings on Facebook, Twitter and overseas regional networks as a source of overseas intelligence,” with outgoing DIA chief Lt. Gen. Michael Flynn calling social media a new form of signals intelligence.
Texas Tribune reporter Morgan Smith recently posted a picture on Twitter of a response she received to a FOIA request submitted to the Department of Education. The FOIA request was denied, and re-routed to the Department of Justice’s Office of Information Policy, by the Department’s Dallas Civil Rights Field Office’s “FOIA Denial Officer,” Taylor D. August.
To celebrate his 90th birthday, the National Security Archive and the Memorial Society in Moscow recently posted online an extensive collection of formerly secret Soviet and US documents on human rights legend and distinguished physicist, Yuri Orlov. The newly posted documents include the first English-language translation of his historic 1956 speech at his physics institute in Moscow, his 1976 founding of the Moscow Helsinki Group, and detailed KGB, Communist Party Central Committee, and Politburo documents. Read the entire Yuri Orlov File here.
In honor of Mr. Orlov’s achievements, this week’s #tbt document pick is an English translation of a Top Secret January 5, 1977, memo from then KGB chief (and later General Secretary of the Party) Yuri Andropov to CC CPSU, “On Measures for Stopping Hostile Activities of the So-called Group for Assistance of Implementation of the Helsinki Agreements in the USSR.” Visit the Archive to read more files on the Helsinki Group.
Finally this week, time is short to express your support for the FOIA Improvement Act. Check out our helpful posting on background information on the bill, and the ways you can help.
Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), responding to both federal agencies refusal to embrace President Obama’s mandate to adopt a “presumption in favor of disclosure” and their continued misapplication of the b(5) FOIA exemption, have introduced the FOIA Improvement Act of 2014. The Act will make it easier for everyday Americans to use the FOIA to request and receive documents by fixing the b(5) “withhold it because you want to” FOIA exemption, cementing fairness into the fee system, and strengthening the FOIA ombuds office, the Office of Government Information Services (OGIS). Thanks to the much-needed fixes it introduces, the bill is supported by a broad coalition of open government advocates, including the National Security Archive.
But, for these important reforms to be felt, the FOIA Improvement Act needs the public’s vocal support! Even though the House has already passed a similar bill, it must pass several more hurdles before it can be written into law.
Check out the links below for further information on the bill, and then contact your Senators to encourage them to support it (you can even ask for a meeting during their August recess), write editorials and Letters to the Editor for your local paper, and help ensure the bill’s success.
- Section-by-section analysis of The FOIA Improvement Act, S. 2520
- Redline of FOIA as Amended by S. 2520
- Letter of Support for S. 2520 Signed by More Than 50 Groups
- Recent Abuses of the Predecisional Exemption
- Explanation of S.2520’s Exemption 5 Amendment
- Op-eds in Support of S. 2520
- Jones: Stop the FOIA runaround, Detroit News, Houston Chronicle, Philadelphia Enquirer, Burlington [VT] Times News, Battle Creek [MI] Enquirer, Petersburg [VA] Progress-Index, Corpus Christi Caller Times, Bryan County [GA] News, Jacksonville [IL] Journal-Courier, Nacogdoches [TX] Daily Sentinel, Montgomery [AL] Advertiser, Bradford [VT] Journal Opinion, Deming [NM] Headlight, Price [UT] Sun Advocate, Casper [WY] Star-Tribune, York [PA] Dispatch, Orangeburg [SC] Times and Democrat, Phoenixville News
- Bennett: President Obama Can (and Should) Embrace the FOIA Improvements ActThe Hill
- Our View: Freedom of Information Act needs to be fixed.Glenn Falls [NY] Post-Star
CIA IG Report Shows Agency Spied on Senate Staff After All, Torture Report Declassification Delayed, and More: FRINFORMSUM 8/7/2014
In direct contradiction to the CIA’s previous claims, a recent CIA Inspector General (IG) report shows the agency did spy on Senate Intelligence Committee staff while it was working on a report highly critical of the CIA’s torture program. The IG report found that five agency employees – two lawyers and three IT specialists – “improperly accessed” a database committee staff was using to complete its five-year, $40 million report. The IG report also determined that the criminal referral the CIA sent the Justice Department accusing Senate staff of hacking CIA databases while completing the report was “based on false information.” CIA director John Brennan apologized to committee chairwoman Sen. Dianne Feinstein (D-CA), who publicly accused the CIA of spying back in March. President Obama expressed his support for the beleaguered CIA director in wake of these reports, saying that “We did a whole lot of things that were right, but we tortured some folks. We did some things that were contrary to our values.”
The Senate Intelligence Committee is delaying the declassification of the executive summary of its torture report after the White House redacted “signification portions” of it. Last week the White House provided its redacted version of the summary to the Committee, allegedly withholding 15 per cent of the document, including pseudonyms for both CIA officers and the countries that cooperated with the agency’s extraordinary rendition program. The redactions also allegedly include evidence that “pieces of information long attributed to detainees — and that led to the disruption of terrorism plots or the capture of additional suspects — had actually come from other intelligence sources such as intercepted communications.” Sen. Feinstein sent a letter to the President on Tuesday objecting to the withholdings, and said the report would not be made public until the redactions were addressed.
Intelligence officials are contemplating asking the Justice Department to open a criminal investigation into potential new leaks of national security information. An August 5 Intercept article contained classified government documents on the National Counterterrorism Center’s databases that “provides a statistical breakdown of the types of people whose names and personal information appear on two government data networks listing people with supposed connections to militants.” The documents showed, among other things, “that 47,000 people — including 800 Americans — were on the government’s no-fly list, while an additional 16,000 — including 1,200 Americans — were on the ‘selectee’ list; they are permitted to travel through American airspace but receive extra scrutiny at security checkpoints.” One document recorded a “milestone” for the Terrorist Identities Datamart Environment (TIDE) database: in June 2013 it contained over one million people. While the dates on these documents are after Edward Snowden finished downloading his trove of NSA documents, the government has yet to confirm that another leaker is sending classified national security information to the media.
A recent Center for Public Integrity article highlights the case of ex-Los Alamos lab contractor James E. Doyle, who was fired after 17 years at the lab after Energy Department officials retroactively classified an article he wrote critical of nuclear policy. Despite the fact that Doyle submitted the article for pre-publication review – even though lab rules didn’t require him to do so – and the review found it contained no classified information, the agency retroactively deemed it classified, and eventually fired Doyle, after receiving criticism from former Obama political appointees. According to nonproliferation expert and former White House official Matthew Bunn, “The classification system, of course, is not supposed to be used for political purposes. It is only to prohibit the release of information if it would damage the security of the U.S. And there’s nothing in this article that could in any way damage the security of the United States.”
Had Doyle been a federal employee and not a contractor, he might have kept his job, but not his desk. A recent Washington Post article sheds light on the “ugly tradition in federal bureaucracy” of relocating whistleblowers to “a cubicle in exile,” including a Veterans Affairs employee who tried to address mismanagement at an agency hospital in Phoenix and ended up relocated to a desk in the basement.
A federal judge upheld a lower court ruling that Microsoft must turn over customer data stored overseas in response to a US search warrant. Microsoft, which plans to appeal, was joined by Verizon, AT&T, Apple, and Cisco Systems, in arguing that the US government has “no right” to customer data stored outside the US, and that forcing Microsoft to comply with such an order “threatens to rewrite the Constitution’s protections against illegal search and seizure, damage U.S. foreign relations and ‘reduce the privacy protection of everyone on the planet.’”
The Associated Press (AP) obtained documents showing USAID allegedly used Cuban HIV prevention programs as a cover for US-sponsored anti-Cuban activism. According to interviews, the HIV-prevention ruse was called the “perfect excuse” to recruit political activists. The State Department defended the program, saying the HIV workshops both “enabled support for Cuban civil society, while providing a secondary benefit of addressing the desires Cubans express for information and training about HIV prevention.” USAID hired Creative Associates International to help build the program – the same company that helped build the fake “Cuban Twitter.”
The CIA recently announced that its Cloud computing, sponsored by Amazon, is now live. When fully functional it “will provide all 17 intelligence agencies unprecedented access to an untold number of computers for various on-demand computing, analytic, storage, collaboration and other services,” and is “as safe as — or safer — than security on its current data centers, having met IC standards that govern the handling of classified information.”
The Archive recently participated in the Russian Institute for Information Freedom Development’s (IIFD) pilot survey measuring proactive global transparency standards. The Archive, along with our partner organizations in Russia, Georgia, and Belarus, filled out the extensive survey on the basis of an already-completed method of grading the openness of government websites. The US achieved the highest percentage of openness given the parameters evaluated (63.4%), with Georgia ranking second (51.6%), Russia third (43.1%), and Belarus last (22.3%). The release of this report comes at the same time the American wife of IIFD founder, Ivan Pavlov, is being forced to leave Russia on the spurious charge that she is “a threat to national security.”
Don’t miss Archive FOIA Coordinator Nate Jones’ latest posting, which originally appeared in Perspectives on History, an American Historical Association publication, on how the CIA’s ability to conceal its 30-year-old history of the 53-year-old Bay of Pigs Invasion by convincing a federal appeals court that any document the agency deems “predecisional” can be withheld ad infinitum, gives agencies a new justification for secrecy. Jones calls on historians to organize a movement strong enough to correct the CIA’s antipathy towards history, and force the agency’s classifiers and declassifiers to follow the Director of National Intelligence general counsel’s instructions and ask “not can we classify, but should we?”
Finally this week, as questions arise about US strategy and its ability to screen for insider threats in the wake of the latest ‘Green on Blue’ attack in Afghanistan, our #tbt document pick is a declassified set of CENTCOM slides that “illustrates some of the steps that the U.S. military has taken to defeat ‘insider threats’ — and why ‘green on blues’ are so difficult to prevent.”
A version of this article originally appeared in Perspectives on History, an American Historical Association publication, with an introduction by Allen Mikaelian and alongside articles by former chief CIA historian Kenneth McDonald, and Cuba, Latin America, and the Caribbean historian Michael Bustamante.
The National Security Archive was disappointed, but not surprised, that in a two-to-one decision the DC Circuit Court of Appeals, in May 2014, agreed with the Central Intelligence Agency that a volume of its 30-year-old history of the 53-year-old Bay of Pigs Invasion could “confuse the public” and should thus be kept secret. To win this argument, the CIA successfully convinced Judges Brett Kavanaugh and Stephen Williams (Judge Judith Rodgers identified multiple contradictions in her strong dissent) that any document the agency deems “predecisional” can be withheld ad infinitum.
The claim that the entire universe of “predecisional” documents–including any claimed “draft”–should be withheld from the public is in line with the agency’s information withholding strategy. The agency has found that it is much easier to withhold entire universes of documents than argue the merits of classification to protect US national security on a case-by-case, document-by-document basis.
The CIA got its first taste of “universal withholding” when Congress passed the 1984 CIA Operational Files Exemption. Unlike other Freedom of Information Act exemptions, which can be applied after agencies search and locate requested documents, the Operational Files Exemption creates a universe of documents that the CIA does not even have to search for. This means that if a historian requests records for, say, Operation Phoenix, the CIA-led assassination program conducted during the Vietnam War, the CIA will reply–less than completely forthcomingly–that its search has returned no results. Admiral William McRaven, the Joint Special Operations Commander who oversaw the Osama bin Laden raid, knew about this transparency black hole: he ordered the FOIA-complying Department of Defense to purge its computers of all files on the Navy SEALs raid on bin Laden and send them to the CIA, where the Operational Files Exemption would keep them “safe” from search and review for release.
Of course, very few historians would argue that FOIA requests should disclose the names of undercover CIA operatives, their foreign sources, or many intelligence methods. But when the CIA’s use of this exemption is examined, it is clear that it goes far beyond these reasonable protections. The agency has stretched the limits again recently to begin arguing that even histories of the Clandestine Service, including its actions in Italy and Hungary more than six decades ago, are exempt from search and review under the Operational Files Exemption. By definition, a history cannot be an “operational file,” yet that is what the CIA is allowed to claim to FOIA requesters.
Troublingly, the CIA’s withholding of its Bay of Pigs history is an attempt to keep another universe of documents from disclosure: those it claims are “predecisional.” The CIA is seeking this expansion because key figures within the US government have begun reviewing the CIA’s classification decisions and overruling the agency’s claims for the need of secrecy. The Interagency Security Classification Appeals Panel (ISCAP), housed at the US National Archives, overrules government classification claims in more than 70 percent of the documents it reviews (including those of the CIA).
To avoid being overruled by ISCAP, the CIA has employed two tactics. First, it uses the Operational Files Exemption so that requesters cannot officially identify classified documents for ISCAP to review and overturn. Second, it has begun to stop withholding some documents because they are classified (which ISCAP could overturn) and instead withholds them because they are “predecisional” (which ISCAP has no authority to overturn). The CIA’s shell game is an affront to those who strive to compile an accurate history of US intelligence, foreign policy, and national security history.
The CIA also strives to obstruct the declassification efforts of holders of releasable universes of documents, including the presidential libraries and the Department of State. At the presidential libraries, the CIA has installed a Remote Archives Capture (RAC) system where it claims authority to digitize all documents at the libraries and first crack at keeping them secret–often using the Operational Files or “predecisional” exemptions–before letting the library, and other agencies, review the documents for release. The RAC system was installed, at least partially, in reaction to the presidential libraries acting with too much autonomy in their declassification decisions and in releasing to the public documents the CIA wished to keep secret. RAC is the primary reason for overclassification and the decades-long waits for declassification at the presidential libraries.
The CIA also continues to slow the release of the State Department’s flagship Foreign Relations of the United States series. In 1991, Congress passed a law requiring the reissue of volumes on relations with Guatemala (1954), the Democratic Republic of the Congo (1960–1968), and Iran (1952–1954) because they initially ignored the CIA’s role in foreign policy. Fortunately, the “retrospective” records of US relations with Guatemala and the Democratic Republic of the Congo have been released. Unfortunately, the declassification review for the volume on Congo took over a decade. We are still waiting for the “retroactive” release of the Iran volume, confirming the CIA’s role in Mossadeq’s overthrow. According to the State Department’s Historical Advisory Committee, a FRUS volume that includes “an intelligence issue requiring consideration” often requires “multiple years  in the declassification pipeline.” Even more troublingly, these declassification issues—many, but not all caused by the CIA—“will increase significantly as compliers work through the Carter presidency and beyond.”
The CIA does have some robust methods for disclosure–for information within the universe that they want disclosed. The agency has a large online library of books, monographs, and documents on subjects such as directors and deputy directors of the agency, and intelligence successes such as Cold War Polish double agent Colonel Ryszard Kuklinski. Their FOIA processing and release of analytical reports is also fairly strong. But in a swipe at both 21st-century industry standards and at historians, the agency steadfastly refuses to post its full CIA Records Search Tool (CREST) database online. Instead researchers must travel to the National Archives or a presidential library to use it. The CIA’s explanation: a fear of the Mosaic Principle–the piecing together of documents to discern information the agency wants hidden. Of course, the Mosaic Principle is one routinely used by historians.
This year, even the general counsel for the Director of National Intelligence, who is nominally in charge of the CIA, instructed that classifiers and declassifiers must ask “not can we classify, but should we?” As the Bay of Pigs case shows, the CIA has ignored this instruction, continues to keep universes of documents secret, and refuses to review harmless documents of historical importance. The agency’s antipathy toward history will not change until historians organize a movement strong enough to force it.
The Office of Government Information Services (OGIS), the federal FOIA ombuds office that provides assistance in FOIA disputes, has begun posting its final response letters to FOIA problems it has mediated. To date, OGIS has posted 21 response letters from 2013 and 2014 on its website.
OGIS’ website and blog, The FOIA Ombudsman, are valuable tools for both the requester community and federal agencies, so FOIAphiles should definitely check them out frequently. OGIS’ sleek web presence is also a breath of fresh air when compared to some other government sites.
The letters recently posted on the site provide an important and telling (if quantitatively limited) view into problems FOIA requesters and processors encounter.
For example: Ever filed a FOIA request on the Department of the Interior’s Inspector General’s website? Better double check that they received it. One letter posted by OGIS reveals that the site experienced “significant problems” and errantly told users that the DOI IG had received their requests when it actually had not.
Another posted final response highlighted the exceptional problem of FOIA referrals, pulling back the FOIA curtain to reveal that delay in a request was caused when the Department of Homeland Security located 377 records but –rather than process them for release themselves– referred them to the Department of Energy to process. Unfortunately, the DOE “returned the documents [to DHS] and informed [the DHS FOIA officer] that they were incorrectly referred to DOE.” Referral delays like this occur frequently, but are rarely documented –or made public.
Of course, the letters show that requesters make unreasonable demands too. These include a requester who disputed the withholding of personal information about the US marshal who arrested him. (In an additional twist, the requester provided OGIS with the incorrect case number, but the OGIS staffer nonetheless worked to track down the correct one.) OGIS stated that the US Marshal’s privacy withholdings were consistent with FOIA case law: “[T]he central purpose of FOIA is to ‘ensure that the Government’s activities be opened to the sharp eye of public scrutiny, not that information about private citizens’ be disclosed.'”
In another case, a prisoner in a federal penitentiary requested “records related to inmate ‘lockbox deposits.'” While OGIS confirmed the Bureau of Prisons’ “no documents found” response was reasonable, it also contacted the Bureau of Prisons and learned that the “lockbox deposits” the requester referred to were likely more accurately described as the “Inmate Deposit Fund.” OGIS sent the requester the relevant chapters of the “Trust Fund/Deposit Fund” manual, which was posted on Bureau of Prisons’ website.
While this relatively small set of final letters is telling and useful, we look forward to when OGIS posts all of its final decisions online so that we can have a more accurate picture of the problems (and possible solutions) facing FOIA processors and requestsers.
Finally, a perusal of these twenty cases shows that little, if any, of OGIS’ work led to the release of more documents. Sadly, the reason for this may be –at least according to one letter– that OGIS, as recently as July 2013, “does not [c]ompel agencies to release documents [or e]nforce FOIA.”
But by my reading, its Congressional mandate is stronger than how it describes its duties. The 2007 update to the FOIA that established OGIS tasked the ombuds office to: “review policies and procedures of administrative agencies,” “review compliance” of FOIA, and to “recommend policy changes to Congress and the President to improve the administration” of the Freedom of Information Act.
The newly established Federal FOIA Advisory Committee (of which I am a member) has pledged that one of its three grand FOIA improvement commitments will be “expanded oversight of the Freedom of Information Act.”1 This small sample of final response letters shows that OGIS has profound knowledge of FOIA, commitment to Open Government, and affords fair treatment to both requesters and processors. These traits, as well as its established tenure, and legislative mandate, make OGIS a strong candidate for the role of FOIA overseer and enforcer.
But even if that does not happen, at least OGIS has begun to produce a public catalog of the problems FOIA requesters and processors face.
Declassification of Senate’s CIA Torture Report Summary Nears, Probe Resumes of Systemic Problems in FBI’s Forensic Testimony, and Much More: FRINFORMSUM 7/31/2014
The White House is expected to declassify the executive summary of the Senate Intelligence Committee’s scathing report on the CIA’s torture program in the coming days, at which point it will be provided to Congress. The New York Times reported that former CIA director George Tenet, under whose leadership the CIA conceived its detention and interrogation program, has been orchestrating a rebuttal since the report’s declassification was announced in April. According to the Times, “Mr. Tenet is working behind the scenes  to develop a strategy to challenge the report’s findings.”
A White House document accidentally emailed to an Associated Press reporter allegedly shows the State Department, however, concurs with the Senate report’s findings. The White House document contains the State Department’s “preliminary talking points” on the report, including the department’s conclusion that the report “leaves no doubt that the methods used to extract information from some terrorist suspects caused profound pain, suffering and humiliation. It also leaves no doubt that the harm caused by the use of these techniques outweighed any potential benefit.” The White House document also found that then Secretary of State Colin Powell was initially kept in the dark about the CIA program.
Recent revelations that the CIA did in fact “improperly access” computers Senate staff were working on for the report, as well as reports that the agency intercepted an email to Congress concerning “allegations that the agency’s inspector general, David Buckley, failed to properly investigate CIA retaliation against an agency official who cooperated in the [Senate] committee’s probe,” will do little to ease the tension between the Senate Intelligence Committee and the CIA. McClatchy reports that the agency accessed a “legally protected email and other unspecified communications between whistleblower officials and lawmakers this spring” concerning the Senate report, though how it did so remains unclear.
Sen. Ron Wyden (D-OR) and Rep. Bennie G. Thompson (D-MS) have jointly introduced “legislation to restore common sense to the classification and security clearance system.” The Clearance and Over-Classification Reform and Reduction Act (CORRECT Act) was introduced in response to reports that as of 2013, over 5 million people –more than 1.5 percent of the US population– hold security clearances, attempts by federal agencies to establish programs to monitor the activity of their security-cleared employees, and the rising cost of keeping too much information classified.
Senator Patrick Leahy (D-VT) also introduced a bill this week, one determined to end the National Security Agency’s (NSA) bulk collection of American phone records. Sen. Leahy’s bill is a “stricter” version than one recently passed in the House and clarifies some of the House’s ambiguous language. The Senate bill does not, however, address the searching of American communications that are swept up during surveillance of non-Americans abroad, and does not provide for a public advocate to have the power to intervene or file appeals with the Foreign Intelligence Surveillance Court.
Former NSA head Gen. Keith Alexander may charge banks and other large companies millions for the use of a “new kind of technology” he invented while at the agency to help deflect cyber attacks. The “unique,” patented technology he invented with partner IronNet Cybersecurity Inc. is designed to detect persistent threats. “Alexander is believed to be the first ex-director of the NSA to file patents on technology that’s directly related to the job he had in government.”
The Department of Justice (DOJ) ordered the resumption of the FBI’s “massive investigation” into widespread forensics errors made by an FBI lab unit over the span of two decades. According to The Washington Post, the FBI discontinued its initial review last year after it learned that “Nearly every criminal case” examined for the investigation contained “flawed forensic testimony from the agency.” The Bureau suspended the investigation, which was initiated after The Post reported two years ago that the flawed evidence led to the conviction of hundreds of potentially innocent defendants and “includes 2,600 convictions and 45 death-row cases from the 1980s and 1990s,” last August after reviewing only 160 cases.
In a “very curious” move, the DOJ is fighting in court to shield the files, including the donor list, of an anti-Iranian group. The group, United Against Nuclear Iran, consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” A Greek shipping mogul is currently suing the group in a defamation case after the group accused him of doing business with Iran. The Justice Department has intervened in the case and is blocking the group from having to reveal its files and donor list as part of the defamation proceedings. The government’s involvement in the case is unorthodox, but “the court filings indicated close ties between the American government and a group that has proved adept at pressuring the government and corporations to isolate Iran economically.”
The CIA determined that a recent FOIA request submitted by MuckRock co-founder Michael Morisy for documents on technical problems with the CIA’s FOIA portal to be “too burdensome.” More interesting than the CIA denying a reasonably described FOIA request for being too vague was its additional argument that the CIA requires “requesters seeking any form of ‘electronic communications’ such as emails, to provide the specific ‘to’ and ‘from’ recipients.” Twitter user @Mythosopher succinctly described the CIA’s circular reasoning thusly: “You can’t see any emails or know who sent or received them. But you must request the exact email and who sent and received it.”
This week’s #tbt document pick is a Secret May 31, 1973, Department of State intelligence memorandum that predicted the 1973 Arab-Israeli War a little over four months later. Check out William Burr’s March 2013 posting for the whole story behind the document and the exceptionally difficult task of finding it.