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.
Reagan-era EO 12333 Comes Under Scrutiny, Authors of 9/11 Commission Report Call for More IC Transparency, and Much More: FRINFORMSUM 7/24/2014
Under the Reagan-era Executive Order 12333, issued in 1981 to authorize foreign intelligence investigations, certain intelligence practices remain so secret “even from members of Congress, that there is no opportunity for our democracy to change” them. An op-ed in The Washington Post argued that while much of the debate on bulk surveillance practices has focused on Section 215 of the Patriot Act, which allows the government to compel private telecommunication companies to turn over customer data, more attention must be paid to EO 12333, whose “surveillance is conducted without court oversight and with comparatively little Congressional review.” Unlike Section 215, which authorizes the collection of metadata, EO 12333 authorizes collection of the content of communications in addition to metadata. If a US person’s communications are “incidentally” collected during an overseas intelligence investigation, EO 12333 “does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.” None of the surveillance reforms announced earlier this year would affect EO 12333 collection.
The authors of the 9/11 Commission report have released a new report to mark the 10th anniversary of the initial publication, finding both that cyberattacks and “fragmented congressional oversight” threaten national security. The authors also noted “Platitudes will not persuade” a skeptical public to support Congressional legislation to let private companies work with the government to counter threats in the face of privacy concerns. “Ten years after the Commission closed its doors, scholars and the general public should be given broad access to these documents, absent a compelling national security justification for withholding a given record.”
Politico’s Josh Gerstein posited that, given bipartisan frustration with, among other things, the ongoing revelations about the National Security Agency’s (NSA) surveillance practices and the White House’s failure to notify Congress about the Bowe Bergdahl prisoner exchange, now might be an ideal time for bipartisan support for transparency measures. These measures include the FOIA Improvement Act of 2014, which would close the b(5) “deliberative process” exemption loophole, and a “shield law that would protect journalists from having to testify about their sources in federal court.”
The New York Times reported that the Clinton Library released roughly 1,000 pages of newly released documents, with 13,000 additional documents expected to be released in the coming weeks. Among the newly released pages are draft signing statements prepared by White House lawyers for President Clinton to sign regarding a 2000 anti-leak bill “that would have made any leak of classified information a felony.” Clinton ended up vetoing the bill instead, noting, somewhat unexpectedly, “Although well intentioned, that provision is overbroad and may unnecessarily chill legitimate activities that are at the heart of a democracy.”
The House of Representatives approved an amendment to the 2015 Financial Services and General Government Appropriations Act last week that would cut the National Security Council (NSC) budget by a third, or nearly $4.2 million. The sharp cuts are in response to allegations from House Appropriations Committee members that “Over the last few months, we have had several instances in which the National Security staff has mandated that the Department of Defense and other agencies selectively withhold information from congressional oversight committees.”
Last week the Senate Appropriations Committee voted to withhold $175 million from the Defense Appropriations Bill until the Israeli government guarantees US firms a larger share of Iron Dome –Israel’s missile defense system– contracts. The defense system was funded primarily by Department of Defense funds, but the majority of contracts have been awarded to Israeli contracting firms, with US contractors receiving as low “as low as 3 percent” of the funds.
The Senate Appropriations Committee also examined the cost of maintaining the Guantanamo Bay detention facility. The Committee found that the average annual cost to house a detainee at Guantanamo is $2.8 million, compared to the cost of housing a maximum-security inmate with Federal Bureau of Prisons, which is roughly $78,000 a year. The Committee also found that the cost of modifying the prison’s clinic to adequately care for the aging detainees would be around $11 million, and housing for the needed support staff would cost over $100 million.
A coalition of 250 organizations, including government watchdogs and whistleblower lawyers, is urging the Securities and Exchange Commission (SEC) to restrict the use of commercial nondisclosure agreements “that discourage employees from coming forward with allegations of fraud and abuse.” Citing a recent rise in the use of such agreements, the coalition is petitioning the SEC “to amend a key rule to make the use of such agreements a violation of securities law.”
To mark the 45th anniversary of Neil Armsrtong’s “one small step” for mankind, becoming the first person to set foot on the moon, the Archive published previously classified government documents on lunar operations. These operations included researching the possibility of conducting nuclear tests in space, using the moon to reflect signals for military or intelligence purposes, and U.S. intelligence analyses of Soviet missions and their intentions to land a man on the moon.
The Archive also published declassified summaries of reports by the once Top Secret Net Evaluation Subcommittee (NESC) -a small and highly secret organization that prepared annual reports analyzing the “net” impact of a U.S.-Soviet nuclear exchange- that revealed the terrible costs of nuclear war this week. One NESC report allegedly prompted JFK to remark, “And we call ourselves the human race.” None of these 50-year old reports have been declassified in their entirety.
This week’s #tbt document pick comes from FOIA Coordinator Nate Jones’ January posting on newly available Stasi notes of meetings between Soviet and East German security heads between 1981 and 1984, which “provide unprecedented details of Operation RYaN, the Soviet intelligence effort to detect and preempt a Western ‘surprise nuclear missile attack,’ that contributed to the risk of nuclear war through miscalculation during the 1983 Able Archer nuclear war scare.” One document in particular stands out given the recent tragedy of the downing of Malaysian Airlines Flight 17: a meeting note that discussed evidence showing the Soviets believed KAL flight 007 –which was shot down by a Soviet jet over the Sea of Japan on September 1, 1983, killing all 269 passengers aboard– was a military, rather than civilian aircraft. Deputy Chairman of the KGB Vladimir Kryuchkov explained “we were convinced that it was a military aircraft.”
Navy Taking Steps, Including Acknowledging Heavy-Handed and “Too-Comprehensive Application” of Kyl-Lott Review, to Resolve Naval Archive Crisis.
In April 2012, Unredacted published a blog item about an ongoing crisis at the U.S. Navy’s Naval Heritage and History Command. The problems were so troubling that the U.S. Navy’s Inspector General produced a highly critical report asserting that the Navy’s history program was “at risk” largely because of serious management problems, inadequate funding and staffing, and environmental threats to unique historical records. While the problems are far from solved, the Navy leadership took the problems seriously and recently announced that it has made progress in remedying them. Nevertheless, the Navy archives remain closed to public access. Until that problem is solved, the Navy will not have an effective, functional history program.
According to the IG report, released through a FOIA request by the National Security Archive, the Navy’s historical records and artifacts were housed in a precarious environment, and invaluable archival material, including unique microfilm collections, was in danger. The IG also found that the History and Heritage Command’s leadership had not been using due diligence to ensure that naval commands and fleets were creating historical records of their ongoing activities. Moreover, the Navy’s professional historians, archivists, curators, and librarians who work for the history command felt “disenfranchised” because of “their marginalization in decision processes and lack of advancement opportunity.”
A basic part of the problem was that the Navy’s Operational Archives are stored in a 19th century brick structures (buildings 44, 57, and 108) in the middle of the Washington Navy Yard. Mold threatened some 70 percent of records, not only paper files but also unique microfilms of Navy message traffic. As part of the program to eliminate environmental threats, the Navy took a draconian step in fall of 2012. It closed off the archives, along with photo, aviation, and ships histories collections, to all public access while contractors worked on upgrading the buildings and the Navy developed improved and expanded archival storage space nearby.
The Navy also tackled the huge collection of microfilms by purchasing special refrigerators and starting to transfer their content to more stable microfilm format. Moreover, a major digitization project is under way to catalog the archives down to the file level to create comprehensive finding aids. All of this required increased funding and staffing levels which the Navy has made available, to its credit.
This researcher and others were startled by the closing but, given the scope of the festering problem, it appears to have been unavoidable. Preservation was only part of the problem, however. As the IG report had noted, the archives had a massive backlog of unprocessed collections, not only the microfilm dating back to the 1940s and 50s. Moreover, the Navy conducted its Kyl-Lott review for records containing Restricted and Formerly Restricted Data in a heavy handed manner, with collections unlikely to have any nuclear secrets closed off for indefinite periods of time, much to the angst of researchers. So that problem needed special scrutiny.
On 21 May 2014, the Navy reported on its remediation progress, the steps it has taken, and the progress it expects to make. News that the photo, ships, and aviation history units have reopened for two days a week is a positive sign. The digitization work continues as do other preservation efforts. Moreover, the Navy tacitly acknowledged that it had gone overboard in its implementation of Kyl-Lott: “the Histories and Archives Division … is correcting the too-comprehensive application of the Kyl-Lot standard to all historical records held at NHHC, which dramatically restricts access.” A Navy working group is “developing … review procedures that will identify collections that will not need Kyl-Lott reviews and how to focus on those collections that do.” Time will tell whether new procedures will make World War II records, Cold War, and post-Cold War records more accessible to researchers. Still, the Navy should be lauded by its realization that its application of the Kyl-Lott was “too comprehensive;” hopefully it will serve as an example for other agencies.
The staffing and leadership problems cited in the IG report were not directly mentioned but the Navy’s investment in resources and staffing may help with morale. Reportedly the Navy will put the NHHC under the direction of a high-grade civil servant. If the Navy selects an individual with a serious commitment to history and deep experience in historical research and writing in and outside of government, that will be a good sign of progress.
At present, the Navy archives, the heart of its historical program, remain closed. According to the Command’s report, they may reopen this fall, depending on “the pace of the overall building and mold remediation efforts.” Let us hope that the Command can solve this problem expeditiously. Without access to formerly open files, and the declassification of other closed collections, independent historical research on the modern U.S. Navy will continue to be “at risk.”
CIA Station Chief Ordered out of Berlin, DOJ Declining to Investigate CIA Complaints that Senate Staff Hacked into Agency Computers while Completing Contentious Torture Report, and More: FRINFORMSUM 7/17/2014
Berlin has ordered the CIA chief of station to leave Germany by the end of the week amid a growing espionage scandal, according to German newspapers. The German Foreign Office did not verify a timeline for departure, but did reiterate the German government’s expectation that the intelligence representative leave “promptly.” Chancellor Angela Merkel demanded the station chief’s departure last week after a year-long spying dispute, triggered by revelations that the National Security Agency (NSA) monitored Merkel’s cell phone, culminated with reports that a German intelligence official was spying for the CIA.
Maj. James Weirick, the Marine Corps whistleblower who accused a senior general and his staff of wrongdoing during the trial of Marines implicated in a video depicting US personnel urinating on dead Afghani insurgents, has been transferred. Weirick, who previously served as a staff judge advocate at Quantico with Marine Corps Combat Development Command, filed an inspector general complaint in March of last year accusing Marine Commandant Gen. James F. Amos and some of his senior staff of exerting undue influence and seeking “to manipulate the military justice system to ensure tough punishments against the snipers shown in the video,” namely by removing the three-star general assigned to oversee the cases after learning that the general intended to impose administrative nonjudicial punishment rather than a more serious court-martial.
The Department of Justice declined to investigate the CIA’s allegations that Senate Intelligence Committee staff somehow hacked the agency’s computers while working on a report highly critical of the agency’s detention and interrogation program. The DOJ’s refusal to investigate the CIA allegations seems to affirm Senate Majority Leader Harry Reid’s (D-NV) earlier comments that accusations “that Senate committee staff who have no technical training somehow hacked into the CIA’s highly secure classified networks…appears on its face to be patently absurd.”
A Navy nurse at Guantanamo is refusing to continue force-feeding inmates on hunger strikes and has been reassigned to “alternative duties.” The Department of Defense recently admitted it has video recordings of force-feeding detainees at the same time detainees are accusing the US of manipulating data on inmates’ hunger strikes to keep strike numbers artificially low. A lawyer for one of the striking detainees, Abi Wa’el Dhiab, submitted court filings to preserve the force-feeding tapes. Dhiab is also one of the six-low level detainees being transferred to Uruguay, and the transfer would likely render his lawsuit moot.
House Democrats are asking 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.” Motorola’s public safety division, Motorola Solutions, has controlled an estimated 80 per cent or more of the market for emergency communications equipment for years, and its radios contain proprietary software that prevents Motorola equipment from interacting with other systems.
Russia will regain control of Lourdes Intelligence Center outside of Havana after giving it up in 2001 to satisfy a request from the US. Russia began negotiating with Cuba to regain control of the facility, which was the USSR’s largest electronic intelligence facility and controlled radio and telephone connections over a large territory of the “potential enemy,” several years ago. Russian President Vladimir Putin also signed a law writing off 90 per cent of Cuba’s $32 billion Soviet-era debt to Russia during his visit to Havana last week.
Newly declassified documents obtained by Ryan Shapiro show the FBI monitored Nelson Mandela during the 1990s over a perceived communist threat. The documents show the bureau monitored Mandela’s communications with the African National Congress “and kept a close eye on the anti-apartheid activities of the Communist Party USA.” Mandela remained on the US’ terror watch list, and the ANC remained designated as a US’ terrorist organization, until 2008. Shapiro has FOIA lawsuits against the NSA, FBI and the Defense Intelligence Agency for their records on any participation in Mandela’s 1962 capture, and a separate case against the CIA for records on Mandela’s arrest.
FOIA work from the folks at MuckRock revealed some interesting cafeteria complaints at the CIA, including suspicion that the Pepsi dispenser was in fact dispensing Diet Pepsi, anger with Russian-themed menu items (“Beef stroganoff is more American than Russian”), and frustration with the grumpy demeanor of fast food workers who have “attitude every day.” In other culinary news, the international food service company Sodexo is seeking a master chef for a secure US government facility in Northern Virginia who holds or can obtain a Top Secret security clearance. As Steve Aftergood points out, this is a prime example of the bloated security clearance system, which the Office of Management and Budget reported earlier this year as being too large and needing to be reduced. As Aftergood notes, “Eliminating the TS/SCI clearance requirement for access to the kitchens and dining rooms of government facilities might be a sensible place to start.”
The KGB Archives of Soviet defector Vasiliy Mitrokhin’s are in the process of opening to the public for the first time. While not available online yet, the FBI called these documents, which Mitrokhin initially smuggled out of KGB facilities daily on small scraps of paper hidden in his shoes, “the most complete and extensive intelligence ever received from any source,” and are bound to be a boon to researchers when they become available.
Finally, this week’s #tbt document pick is a great reminder on the need for reform to the b(5) “deliberative process” exemption. The document is a May 18, 1994, State Department memo expressing doubts about the size of the Rwandan death toll and was cited in Samantha Power’s 2003 groundbreaking history A Problem from Hell, based largely on FOIA requests she and other Archive staff filed while at the National Security Archive. Apparently, the Department of State failed to realize in 2007 that the memo had been released years earlier in its entirety and cited in Power’s book, and chose to use the b(5) exemption to withhold the information in the memo from the public, citing the specious claim of the deliberative process. It’s worth noting that Power’s book also cites the intransigence of US agencies at the time, noting the need for “congressional inquiries with the power to subpoena documents and to summon US officials of all ranks in the executive and legislative branches,” as it was nearly impossible to obtain “meaningful disclosure” about the Rwandan genocide through the FOIA process.
National Security Agency Refuses to Release Documents on Mysterious Death of UN Secretary-General Over 50 Years Ago
The National Security Agency continues to withhold all portions of two documents about the 1961 death of Secretary-General of the United Nations Dag Hammarskjold in Ndola, Northern Rhodesia – now Zambia. The Agency continues to withhold this historically significant material despite a FOIA appeal from the National Security Archive that provides specific examples of previously released SIGINT (Signals Intelligence) documents from the 1950s and 1960s and explains why the Agency should not treat fifty-year-old documents as though they were created today. The Agency’s response to the Archive’s appeal merely reiterated the same exemptions and statutes listed in its original August 2013 denial letter. Its response makes no reference to the evidence provided to the Agency. The Agency also refused to consider the wide public interest in the United States, the international community, and the United Nations for information about Secretary-General Dag Hammarskjold’s mysterious and tragic death while flying to Ndola to resolve a conflict in the Congo. The Agency has refused to help clarify the historical record.
Previously the Agency has declassified such once-tightly held SIGINT documents as “Vietnam War Cryptologic Activities 1961 – 1975” now on display at the Agency’s National Museum of Cryptology; the Agency’s website, www.nsa.gov contains the 1964 “Gulf of Tonkin Signals Intelligence (SIGINT) Reports and Related Command and Technical Messages”; other documents include a January 1961 intercept Spanish-Speaking Pilot Noted in Czechoslovak Air Activity at Trencin; the U.S. Army Security Agency Annual Historical Summary Fiscal Year 1962 (pp. 50-51 for listening post and CRITICOM system in use at Ashara, Ethiopia); also A History of U.S. Communications Security (The David G. Boak lectures), National Security Agency that includes detailed descriptions of 1940s to 1960s systems. In addition to denying the Archive’s appeal without explanation, the Agency’s FOIA office either came to its conclusion before judging its merits, or unnecessarily delayed its response. Four weeks before the Agency’s Appeal Authority issued its official denial letter, which was postmarked June 16th, the Agency’s Press Office wrote to a Wall Street Journal reporter stating that all requests for the two documents had been denied and the cases were closed. Baffled, the National Security Archive can only wonder why we would be the last to learn that our appeal was denied.
As we described in our appeal letter to the Agency, the technology used in 1961 has long since been replaced. The declassifiers at the Agency’s FOIA shop have the discretion to release this information. Section 3.1 (d) of Executive order 13526 states, “In some exceptional cases, however, the need to protect such information may be outweighed by the public interest in disclosure of the information, and in these cases the information should be declassified. When such questions arise, they shall be referred to the agency head or the senior agency official. That official will determine, as an exercise of discretion, whether the public interest in disclosure outweighs the damage to the national security that might reasonably be expected from disclosure.” During Sunshine Week 2014, the Director of National Intelligence General Counsel Bob Litt, stated that he has instructed declassifiers to declassify more information using this provision. He stated that classifiers and declassifiers must now ask: “Not can we classify –but should we?” The Agency’s FOIA shop and appeals division clearly have not received this message.
Decades-Old Rwandan Genocide Documents Withheld under B(5) FOIA Exemption, Researchers Forced to look Abroad for Transparency
With contributions by Kristin Scalzo
Twenty years ago at least half a million members of Rwanda’s Tutsi minority, along with tens of thousands of “moderate” Hutus, were slaughtered in the Rwandan genocide, and the world is finally –with the help of newly declassified records– beginning to piece together a fuller account of the role the international community played during the atrocities.
Unfortunately, too little of this decades-old information on the Rwandan genocide is coming from the US government, whose responses to Freedom of Information Act (FOIA) requests for documents on the genocide have been marred by the misapplication and overuse of the b(5) “deliberative process” exemption.
In one instance, pursuant to the b(5) exemption, State Department reviewers redacted sections of a seminal May 18, 1994, State Department memo expressing doubts about the size of the Rwandan death toll . Apparently, the Department of State failed to realize that the memo, in which State Department Intelligence unit head Toby Gati addressed whether or not the US government should use the “G-word” to describe events in Rwanda, had been released years earlier in its entirety. Instead, the reviewer chose to use the b(5) exemption to withhold the information from the public, citing the specious claim of the deliberative process.
This “G-word” memo was initially recounted in Samantha Power’s 2003 groundbreaking history A Problem from Hell, based largely on FOIA requests she and other Archive staff filed while at the National Security Archive. Power’s book also cites the intransigence of US agencies at the time, noting the need for “congressional inquiries with the power to subpoena documents and to summon US officials of all ranks in the executive and legislative branches,” as it was nearly impossible to obtain “meaningful disclosure” about the Rwandan genocide through the FOIA process. Power is now the US Ambassador to the United Nations.
In April 2014 the State Department also refused to release portions of a May 14, 1994, document that contained draft Security Council Resolution 918, which was released to the public in 2002. The draft Security Council Resolution increased the number of peacekeepers in Rwanda, was distributed throughout the UN, and was later released in full. But again, the State Department claimed the b(5) exemption, forcing researchers at the National Security Archive and the Center for the Prevention of Genocide of the United States Holocaust Memorial Museum to rely on UN documents, as well as documents from the government of New Zealand, to obtain this 20-year old document with obvious historical importance.
Unfortunately, these are far from isolated incidents. The heavy-handed application of the b(5) exemption, which potentially covers all “inter-agency or intra-agency memorandums or letters,” has been used to cover up documents on the US role in the Rwandan genocide (some readily available elsewhere), an embarrassing Department of Justice diversity study, a history of the Bay of Pigs invasion, and deaths due to delays at Veterans Affairs Administration hospitals.
This has led to nicknaming b(5) the “withhold it because you want to” exemption. And agencies’ use of it is skyrocketing. According to statistics compiled by the Associated Press, b(5) use is at an all-time high –used 81,752 times in 2013–, and was applied to 12 percent of all 2013′s processed requests to deny information.
The b(5) exemption has the highest possibility for discretionary release, and, if agencies followed President Obama’s 2009 FOIA memo instructing all agencies “to adopt a presumption in the favor of disclosure,” and Attorney General Holder’s guidance that documents should not be withheld “merely because [an agency] can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” we should be seeing it a lot less – not more. Sadly, it is clear that agency restraint and even proclamations from the President and Attorney General have not worked.
Agencies’ continued misapplication and overuse of the b(5) exemption, despite President Obama’s and Attorney General Holder’s clear directives to the contrary, has prompted a longstanding push by the open government community for a legislative fix to end agencies’ practices of withholding too much information.
These efforts to rein in the exemption recently culminated in the Senate when Senators Leahy (D-Vt) and Cornyn (R-Tx), two long-time FOIA champions, introduced legislation to fix the b(5) loophole: the FOIA Improvement Act of 2014 would stipulate, among other things, that historical documents (documents created over 25 years ago) cannot be withheld under b(5), and would require agencies to balance the benefit to the public interest against the benefit of government employee confidentiality before withholding documents.
The b(5) pre-decisional exemption was initially conceived to prevent government employees from “working in a fish bowl,” and to allow employees to give each other –and their supervisors– candid advice. These protections should and will remain. President Obama has correctly stated, however, that the principles behind the Freedom of Information Act prohibit the government from withholding information to prevent embarrassment, hide errors or failures, or because of speculative or abstract fears.
Unfortunately, these are precisely the things the b(5) “withhold it because you want” exemption is being increasingly used to hide, as evidenced so plainly in the exemptions used to censor these Rwandan genocide documents. Americans need to know how their government acted during key moments of history, such as Rwanda’s descent into genocide. Currently the b(5) exemption is frequently used improperly to hide this information. The FOIA Improvement Act of 2014 is the best solution.