Skip to content

Exemption 5 Can’t Go International: FRINFORMSUM 3/30/2017

March 30, 2017

Court Says FOIA’s Exemption 5 Protections for “Inter-Agency” Communications Don’t Apply to Foreign Agencies

The Sixth Circuit Court of Appeals ruled that the FOIA’s Exemption 5 – the oft-abused “deliberative process” exemption that allows the government to withhold inter and intra-agency communications – does not apply to communications with foreign agencies. In the case, Lucaj v. FBI, the FBI tried to argue that B5 protected requests for assistance between the agency and Austria and another unnamed country as part of an investigation into a man suspected of meddling in elections in Montenegro. Judge Karen Nelson Moore did not agree with the bureau, writing that “inter-agency” protections require both the sender and receiver be an agency or authority of the United States. Lawfare’s Michael Linhorst writes, “The court also rejected the government’s argument that the requests at issue are covered by the ‘common-interest doctrine,’ which ‘permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims.’”

Air Force Looks to Embrace Proactive Disclosure

A new Air Force Instruction orders the agency and its components to adopt an information policy of “maximum disclosure, minimum delay.” The Instruction highlights the importance of proactive disclosure, saying that Air Force FOIA reading rooms should post information “that has been requested via FOIA or could be requested via FOIA.” Doing so, as the Air Force notes, would both contribute to the “free flow of information between the public and the government,” and would also “minimize the federal paperwork burden on the public, minimize the cost of its information activities, and maximize the usefulness of government information.” Steve Aftergood published the new Instruction on his website, noting that, “By itself, the new policy does not mean that the Air Force is now practicing maximum disclosure or that it will necessarily do so in the future. The policy is not self-enforcing. Still, it represents an official statement of Air Force values, and it therefore provides a point of leverage that can be used by anyone, in the service or among the public, who would seek to uphold those values in practice.”

Can You Find All the FOIA Reading Room Errors?

If you’ve ever run across a FOIA reading room made almost inaccessible by a security certificate saying that the connection is not private, please add them to the FOIA.wiki’s page cataloging FOIA Reading Room Errors. Current known offenders are the Army, CENTCOM, and the Air Force – who are we missing?

OGIS Report Highlights Where Compliance, Recommendations Stand

The Office of Government Information Services’ (OGIS) 2016 annual report, Building a Better FOIA Process, is a good overview of both OGIS’s accomplishments and workload over the last year (787 cases opened in FY 16 quarter 4 alone). The report also has an informative overview of where agencies stand working towards OGIS’ compliance recommendations and recommendations to agencies:

FOIA Request Shows Robert Mercer Funded Milos Yiannopolous’ College Speaking Tour

A FOIA request to the University of Washington from MuckRock user Matthew Guariglia seeking information on Milo Yiannopolous’s college campus speaking tour, particularly his speaking fee, shows hedge-fund billionaire Robert Mercer funded the endeavor. Mercer funded the trip through a small production company, Glittering Steel, LLC, which also made contributions to President Donald Trump and Senator Ted Cruz’s presidential campaign. Mercer, along with his daughter Rebekah, have also invested a reported $10 million in Breitbart News, Yiannopolous’s former employer.

IRS Sends MuckRock Password Protected Glomar

The IRS responded to a MuckRock FOIA request for financial investigations into three Ukrainian nationals with a locked, unreadable PDF. A separate email contained the password, which ultimately opened the PDF. What did the PDF reveal? A Glomar response – the agency could neither confirm nor deny any of the records sought.

Number of Exemptions to Florida’s Disclosure Law Tops 1,000

There are 1,119 exemptions to Florida’s Sunshine Law. Florida’s First Amendment Foundation tracks the carve-outs, and the Florida Society of News Editors recently launched a project to commemorate Sunshine Week that will keep a “scorecard” to track the foundation’s priority list of public records exemptions. FSNE members will create a permanent scoring system to grade legislators on their introduction of bills and their final votes.” Some of the exemptions include a law exempting autopsy photos from public release, and a proposed bill that would exempt all information about crop-dusting information.

Secret South Korean Nuclear Weapons Program Created Anxiety in Washington in Mid-1970s

President Park Chung-hee reportedly instructed South Korean scientists to build nuclear bombs by 1977, according to a secret report to Secretary of State Henry Kissinger newly posted by the National Security Archive.  The Ford administration accumulated other evidence that raised worries about proliferation and regional instability. The posting, the first of two on US policy toward South Korea’s atomic weapons program in the mid-1970s, is based on a wide variety of declassified sources, including records released through mandatory declassification review. They offer an account of the first stages of what became a successful U.S. effort to keep an ally from engaging in destabilizing proliferation activity in one of the world’s enduring trouble spots.

Dead Reckoning

The National Security Archive’s Kate Doyle participated in PBS’s recent three-part documentary, Dead Reckoning, which “follows war crimes investigators and prosecutors as they pursue some of the world’s most notorious war criminals…The principles, legal doctrines and tactics that emerged from those pursuits now inform the effort to expose, prosecute, and punish present day human rights violators whose depredations have left millions dead and displaced.”

Doyle, the Archive’s Guatemala Documentation Project director, is featured in part two’s Guatemala sequence that also includes Claudia Paz y Paz, Fredy Peccerelli, and Naomi Roht-Arriaza, among others.

TBT Pick – Drugs and the Guatemalan Military

This week’s #TBT pick is chosen with the PBS documentary in mind and is a 2005 posting that highlights investigative journalist Frank Smyth’s work “documenting links between retired Guatemalan military officers and drug trafficking in the United States.” Smyth’s work uses declassified US documents obtained by the National Security Archive’s Guatemala project through the FOIA. Records provided by the National Security Archive for the story describe a powerful and brutal military institution with intimate ties to the United States and a history of corruption. They include information on:

  • Scorched-earth tactics used by the Guatemalan army during the 30-year civil conflict that resulted in hundreds of thousands of dead and missing;
  • The military’s vast web of informants available to them during and after the conflict;
  • How one corrupt ex-officer, Lt. Col. Carlos Ochoa Ruiz, used his connections in the military to protect drug trafficking and car smuggling operations inside Guatemala.

Sign Up

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM (Freedom of Information Summary) email newsletter.

Happy FOIA-ing!

 

OIP Has No Answer to FOIA Audit Showing 3 out of 5 Agencies Flouting New FOIA Law: FRINFORMSUM 3/16/2017

March 16, 2017

Houston, We Have a Problem if 3 out of 5 Agencies Ignore New FOIA Law

Three out of five of all federal agencies are flouting the new law that improved the Freedom of Information Act (FOIA) and required them to update their FOIA regulations, according to the new National Security Archive FOIA Audit released to celebrate Sunshine Week.

The National Security Archive Audit found that only 38 out of 99 federal agencies have updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016 that was passed with bipartisan, bicameral support. The new law required agencies to update their FOIA regulations within 180 days of passage – that was June 30 so December 27, 2016 was the deadline.

Because 61 agencies have not updated their FOIA regulations, many requesters may still be charged improper FOIA fees if an agency misses a deadline, could be unaware of the mediation services available to them, and are being robbed of their rightful appeals deadlines. While the law mandates that requesters be given “not less than 90 days” to file an appeal, many agencies with outdated regulations routinely give requesters much shorter 30, 45, and 60-day deadlines.

The audit faulted the Department of Justice’s Office of Information Policy (OIP) for “clearly failing in its mandate to oversee FOIA compliance throughout the federal government.”

In response, OIP head Melanie Pustay said, “Since passage of the FOIA Improvement Act of 2016 the Office of Information Policy has engaged in a wide range of activities to inform and advise agencies of their obligations under the new statutory provisions.” It remains clear, however, that with 3 out of 5 agencies ignoring the new law – whatever guidance and assistance OIP is providing is not nearly enough.

Sunshine Week Round-Up

Archive director Tom Blanton speaks at NARA event on “FOIA After 50”

Sunshine Week 2017 kicked into full gear on Monday at the U.S. National Archives in an event hosted by the Office of Government Information Services (OGIS).

Archivist of the United States, David Ferriero, noted in his opening remarks that he was pleased to see continued bipartisan support for the FOIA – a sentiment the entire open government community shares. Ferriero also stated, in response to a question from the Sunlight Foundation’s Alex Howard, that NARA always follows up with agencies when it sees news reports of agencies taking down information from their websites to ensure that – if the records are covered by the agencies records control schedule – to ensure the information is preserved. Ferriero pressed the audience and the public to visit each agency’s website to view their control schedules.

National Security Archive director Tom Blanton, University of Maryland College of Journalism dean Lucy Dalglish, and Ralph Nader joined Tom Susman for a panel on FOIA after 50. Nader – who called the Archive “the majordomo” of FOIA – cited Archive FOIA project director Nate Jones’ 2015 House testimony to recount the problems FOIA currently faces, calling for a massive expansion of usage, especially among the young. Blanton noted that while FOIA has its problems – in no small part captured by the Archive’s latest audit – the law continues to be one of the most important drivers of the news – recently shedding light on Mike Pence’s use of private email while governor of Indiana, EPA head Scott Pruitt’s collusion with the oil and gas industry, and national security adviser H.R. McMaster’s official reprimand for his handling of a sexual assault investigation.

Representatives Jason Chaffetz and Elijah Cummings both provided remarks, with Cummings citing Tom Blanton’s December 2016 House testimony that the new sunset provision in the FOIA Improvement Act of 2016 “has already resulted in the release of documents on the Bay of Pigs incident the CIA had hidden away for more than 50 years.”

Check out the video here.

Forecasting Freedom of Information,” a survey directed by the University of Arizona’s journalism professor David Cuillier and sponsored by the Knight Foundation, found that “Nearly 9 of 10 experts who contributed to this study—be they journalists, librarians, nonprofit groups or government employees—fear the new administration will worsen freedom of information and government transparency.” The authors of the study make the case for a “freedom of information renaissance” to counter the threat. The authors argue the four priorities that should define such an effort are: banding together, taking FOIA fights increasingly local, increasing education and advocacy, and developing digital technology.

The Electronic Frontier Foundation announced the winners of the 3rd annual FOILIES award for worse open government performance. “Winners” included Donald Trump for his efforts to Make America Opaque Again, Mike Pence for vilifying Hillary Clinton’s private email and server while maintaining his own Private AOL account, and the Justice Department of sending a FOIA response not to the intended requester – but instead to an inmate in federal prison serving time for child pornography charges. “The offender, however, was nice enough to forward the message to the PAC with a note railing against the ‘malicious incompetence’ of the Obama administration.”

Anatoly Chernyaev with his partner Lyudmila Rudakova and their dog Yashka in September 2016″ (photo by Tom Blanton)

Archive Hero Anatoly Chernyaev Dies at 95

The National Security Archive mourns the passing of our dear friend, mentor, inspiration, and colleague, Anatoly Chernyaev, in Moscow at the age of 95.

Anatoly Sergeyevich ranks as a leading protagonist of the peaceful end of the Cold War, a pioneer of “new thinking” on mutual security in international relations, and a transformative visionary for a demilitarized and democratic Soviet Union and a new Russia that tragically never came to be.

He served as the national security adviser to Soviet leader Mikhail Gorbachev from March 1986 through the end of the USSR in December 1991, preparing, participating, and often taking the official Soviet notes at summit meetings with U.S. presidents Reagan and Bush, and with world leaders ranging from Margaret Thatcher to Rajiv Gandhi.

A champion of glasnost and access to sources, Anatoly Chernyaev was a luminary of the Gorbachev Foundation at its finest. His generosity put all scholars who study the end of the Cold War in his debt. He remains our hero.

His Washington Post obituary is here.

Finding Oscar

Reserve your seat now for a free screening and discussion of the documentary “Finding Oscar” at Busboys in Poets in DC next Thursday, March 23.

The filmmakers attempt to find Oscar, a young boy who was spared from a massacre during Guatemala’s decade-long civil war – only to be raised by one of the soldiers who killed his family. In finding Oscar, the filmmakers hope “to uncover the truth and bring justice to those responsible.”

Join the National Security Archive’s Kate Doyle, ProPublica’s Sebastian Rotella, the Washington Office on Latin America’s Geoff Thale, and the Department of Homeland Security’s Kelly Fry for a discussion after the screening to explore the continuing hunt for fugitive commandos involved in the Guatemalan massacre and other past atrocities in Central America – some of whom are in the United States – as well as the parallels between Oscar’s story and the intensifying conversation around immigration and refugees in the United States today.

Naval Academy Professor says Section 702 Complies with Fourth Amendment

Congressional testimony from Naval Academy cybersecurity law professor Jeff Kosseff found that, regarding the Fourth Amendment, Section 702 of the FISA “is substantially different from the massive dragnet operation portrayed in the media reports. I discovered an effective foreign intelligence program that is subject to rigorous oversight by the three branches of government and, under the totality of the circumstances, complies with the Fourth Amendment.” Kosseff notes, however, that without the important work done by the Privacy and Civil Liberties Oversight Board, an evaluation of the program would have been impossible.

Kosseff finds, among other things, that “because foreign intelligence is a special need that is distinct from normal law enforcement, the Fourth Amendment does not require a warrant for Section 702,” and that, “On balance, the FBI’s ability to query Section 702 data, as described in the public record, does not render Section 702 unconstitutional.”

This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, March 15.

A 2005 report from the National Ground Intelligence Center speculated that Beijing might be trying to develop a capability to incapacitate Taiwan electronically without triggering a U.S. nuclear retaliation. (Document 11)

#TBT – US Intelligence Eyes Chinese Research into Space-Age Weapons

This week’s #TBT pick is a 2011 posting on US intelligence agencies monitoring Chinese weapons development. The posting includes primary sources on an array of issues, including:

  1. Estimates and studies of the China’s foreign and defense policies, strategic power, scientific and industrial capabilities, and domestic affairs;
  2. Biographical information on Chinese military and civilian leaders;
  3. Studies of the possibility of a PRC-Taiwan clash (whether over islands in the Taiwan Straits or Taiwan itself);
  4. Materials discussing Taiwan’s production of conventional arms, and its occasional quest to develop nuclear weapons.

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM (Freedom of Information Summary) email newsletter.

Happy FOIA-ing!

 

Creative Justice: Behind the battle to make U.S. courtrooms sites of accountability for Latin American human rights atrocities

March 15, 2017

This posting initially appeared in Volume 49 of NACLA Report on the Americas. 

The grave of Victor Jara in Santiago’s Cementerio General.

Poet, musician, theater director, teacher, and activist, Víctor Jara was the creative heart of the movement in Chile seeking social change under President Salvador Allende, and an early victim of Augusto Pinochet’s terror regime. Jara was 40 years old when he died at the hands of the Chilean military following the September 11, 1973 coup. It would be 43 more years before any of his killers met justice. On June 27, 2016, a jury of six women and men found former army lieutenant Pedro Pablo Barrientos Nuñez liable for his role in Jara’s torture and extrajudicial killing—not in Santiago, where the crime took place, but inside a modest courtroom in Orlando, Florida, more than 4,000 miles away.

How one of Jara’s killers came to stand trial in the United States is part of a fascinating story of creative justice being rendered against Latin American human rights violators before U.S. judges and juries. Since 1980, human rights attorneys have used one legal instrument in particular—the Alien Tort Statute (ATS), which dates to 1789—and later an array of other laws to pursue a measure of accountability for perpetrators who would otherwise have remained untouched. The motivation behind their efforts is not to preempt the region’s judicial systems, but to offer an alternative means to strike against impunity. The cases often give survivors and victims’ families their first chance ever to tell their stories inside a courtroom. They also help build a body of human rights jurisprudence that can guide legal action in the future. For U.S. citizens, the trials unmask torturers and assassins who have been living among them for years. The Center for Justice and Accountability (CJA), the California-based group behind the Jara trial, estimates that more than 1,000 human rights abusers have settled in the United States.

The strategy has its drawbacks. The outcome of the complaint brought by Víctor Jara’s widow, Joan, and their daughters, Amanda and Manuela, against former Chilean military official Pablo Barrientos reflects the tricky nature of such proceedings. On the one hand, the Florida ruling represents the only accountability achieved in a case that was stalled for half a lifetime. It could also reinvigorate Chilean prosecutors to advance their own criminal investigation against Barrientos and at least ten other Chilean military officers indicted for Jara’s torture and killing. On the other, the decision was the result of a civil lawsuit; it did not result in Barrientos’ incarceration. The jury’s verdict found the retired lieutenant—who remains a free man in Florida, where he has lived since leaving Chile in 1989—liable for $28 million USD, a sum the Jara family will likely never see.

The idea to adapt an obscure eighteenth-century civil law to serve twentieth-century human rights purposes first emerged in a case brought by the Center for Constitutional Rights (CCR) in New York against a Paraguayan perpetrator. Police inspector Américo Peña-Irala had moved to the United States after torturing and killing 17-year-old Joelito Filártiga in Asunción, and was spotted by Joelito’s sister Dolly in 1979, walking on the streets of Manhattan. In response to Dolly’s plea for assistance, CCR brought a wrongful death action—the civil equivalent of the crime of murder—against Peña-Irala based on ATS. Although the Alien Tort Statute was originally intended to give federal courts jurisdiction over violations of “the law of nations,” such as piracy, assaults on diplomats, and debts owed to foreign countries, CCR argued that Peña-Irala’s actions flouted common principles of international human rights law and therefore fit within its scope.

The U.S. Second Circuit Court of Appeals agreed. Ruling in favor of plaintiff Dolly Filártiga in 1984, the court found in Filártiga v. Peña-Irala that “deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties. Indeed,” the decision continued, “for purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humanis generis, an enemy of all mankind.”

The Pinochet File: A Declassified Dossier on Atrocity and Accountability (Barcelona: Critica, 2013)

The ruling was groundbreaking. By asserting its authority to enforce international human rights norms, the Second Circuit opened the U.S. federal court system to victims of human rights violations and their families, no matter their country of origin. Human rights attorneys took notice and filed dozens of new cases, quickly expanding the reach of the Alien Tort Statute beyond Filártiga. Successful lawsuits demonstrated that ATS could target not only material killers like Peña-Irala but also those who planned and ordered human rights violations. These lawsuits broadened the torts available under law from torture to extrajudicial execution, arbitrary detention, sexual violence, genocide, war crimes, and crimes against humanity. Cases targeted defendants from countries across the western hemisphere and around the world—from Peru and Argentina to Haiti, Honduras, Guatemala, Bolivia, Indonesia, the Philippines, Bosnia, and Rwanda. The Filártiga case was the precedent that paved the way for Spanish investigating judge Baltasar Garzón’s decision to go after former Chilean dictator Augusto Pinochet in London in 1998.

The pioneering work of the CJA richly illustrates the advantages of civil litigation. In one of its earliest strategic decisions as an organization, CJA decided to go after human rights violators from El Salvador. The group’s reasoning began with the amnesty law passed shortly after the country’s bloody 12-year civil war ended in 1992. Although the tactics used by security forces and government-supported death squads had left 75,000 civilians dead and countless more survivors of repression, the amnesty nullified efforts to prosecute human rights crimes there. Equally important for CJA was the U.S. role in funding, training, and arming El Salvador’s forces and supporting their brutal counterinsurgency campaign. “That was a huge motivation for us,” CJA Senior Legal Advisor Patty Blum told me. “We felt we had a responsibility to go forward with the cases because of the history of the United States in El Salvador.” Over the course of 14 years, CJA won more than $70 million USD in judgments in three lawsuits against former Salvadoran officers. Each one brought civil litigation to new heights: the first time in a contested case that a U.S. jury found a commander liable for crimes against humanity (Chávez v. Carranza); the first trial held anywhere for the 1980 assassination of Salvadoran Archbishop Oscar Romero (Doe v. Saravia); and a case that led to the deportation by the U.S. government of two former defense ministers of El Salvador (Romagoza Arce v. García).

Despite these advances, ATS decisions offer a fairly weak version of justice. The majority end in default, meaning the defendant simply doesn’t show up and the judgment is issued in his absence. By the time the Filártiga family was awarded $10 million USD in damages by the Second Circuit, Peña-Irala had been deported. (He was never criminally prosecuted and today lives in Luque, Paraguay.) Victims rarely receive any of the money granted to them when they win. And the United States government has been infuriatingly slow to remove violators from the country after they are found liable, even in the rare instances when their nation of origin has filed a formal extradition request. Pablo Barrientos is one of those rare instances: the Supreme Court of Chile issued a request for his extradition in 2013. Whether he remains on U.S. soil because he is a naturalized citizen—making extradition legally complicated—or because the United States is reluctant to remove a soldier in what was a U.S.-supported coup— making extradition politically complicated—is unclear, even to human rights lawyers.

The Alien Tort Statute is also restricted to foreign plaintiffs, thus prohibiting U.S. citizens from bringing similar complaints before U.S. courts. That flaw was remedied somewhat in 1991, when Congress passed the Torture Victim Protection Act (TVPA) to permit U.S. citizens and foreigners alike to file cases for acts of torture or extrajudicial killing abroad. In 1992, Sister Dianna Ortiz became the first person to file a suit under TVPA, suing former Guatemalan military general and defense minister Héctor Gramajo for his command responsibility in her kidnapping, rape, and torture by Guatemalan security forces in 1989. Ortiz was awarded a default judgement of $5 million USD in 1995. However, TVPA does not cover any of the wide range of human rights abuses recognized in ATS litigation, making it a more limited tool. Given a history of messy, sometimes conflicting, jurisprudence on ATS, human rights attorneys today tend to sue under a combination of both statutes as a way of widening their legal net.

Unsurprisingly, there has been strong pushback against ATS/TVPA litigation from conservative legal scholars. Many consider it a violation of U.S. sovereignty that subjects the United States to a form of universal jurisdiction. In his dissent on the first Supreme Court ruling to address the Alien Tort Statute, Sosa v. Álvarez-Machaín—a 2004 decision that affirmed victims’ rights to seek redress in U.S. courts—the late Justice Antonin Scalia called the modern iteration of ATS “a 20th-century invention of internationalist law professors and human rights advocates.” When human rights lawyers began developing cases against transnational corporations, conservative animus became a fierce backlash. The Supreme Court’s 2013 decision in a case brought by CCR, Kiobel v. Royal Dutch Petroleum Co., damaged ATS by stating that the Nigerian plaintiffs’ claims that Royal Dutch Shell colluded with the Nigerian government to unleash a campaign of violence against protesters of oil exploration did not concern the United States “with sufficient force,” given Shell’s “mere corporate presence” in the U.S. The ruling has sent legal experts scrambling to interpret whether or not Kiobel definitively spells the end to using ATS against private companies. In a separate decision, Mohamad v. Palestinian Authority, issued in 2012, the court diminished the scope of the TVPA when it ruled that only individuals, not companies or foreign powers, may be held liable under the Act.

Attacks notwithstanding, the ATS strategy remains relevant and new cases are filed every year. The difference between the Filártiga era and today is that there is a multiplicity of paths to challenging the impunity of notorious human rights abusers. For one, there are new laws targeting international human rights crimes, such as the Trafficking Victims Protection Act (2000) and the Child Soldiers Prevention Act (2008), making TVPA just one of many sources of legal recourse. Both the U.S. Justice Department and the Department of Homeland Security (through Immigration and Customs Enforcement) now have special units to hunt down human rights violators— deporting some and winning convictions against others for falsifying their visa or citizenship applications. The units have found five Guatemalan fugitive soldiers involved in the 1982 Dos Erres massacre. All but one are currently in prison. (The fifth was arrested as this article was going to press.)

Countries like Spain, Belgium, and Italy have also taken on criminal investigations of international human rights crimes. They include a case brought by CJR before the Spanish National Court to try Salvadoran officers for the assassination of six Jesuit priests, their housekeeper, and her daughter in 1989. Groups in Canada are pursuing litigation against mining companies that have targeted protesters with violence. The American Civil Liberties Union has even brought TVPA charges against two American psychologists accused of designing the CIA’s post-9/11 torture program.

And just as the human rights attorneys who pioneered the ATS/TVPA strategy always hoped, a few of their lawsuits have directly contributed to justice in Latin America. Last September, two Peruvian army officers who were sued by CJA, found liable, and then shipped back to Peru by the U.S government for their role in the 1985 Accomarca massacre, were found guilty of homicide and forced disappearance in the Accomarca case. This time it was a criminal trial, held in Lima, before Peruvian magistrates.

Although Pablo Barrientos remains in the United States for now, the jury decision finding him liable for Víctor Jara’s murder gave his family tremendous satisfaction. Asked what she felt upon hearing the verdict, Joan Jara told the press, “Happiness—and incredulity.” She stood on the steps outside the courthouse, flanked by her daughters. “What we were trying to do for more than forty years for Víctor has today come true,” Jara said through her tears. “It’s the beginning of justice … ”

Thanks to Bea Abbott for her research assistance.

FOIA Sheds Light on Hundreds of Trump Administration Hires, and Much More: FRINFORMSUM 3/9/2017

March 9, 2017

ProPublica Uses FOIA to Win List of 100s of Trump Hires       

FOIA requests from ProPublica have, along with a list of names provided by the Office of Personnel Management, won the release of more than 400 names of Trump administration hires that have been installed across the government, “providing the most complete accounting so far of who Trump has brought into the federal government.” The list of “beachhead team” members, none of which require Senate confirmation, includes lobbyists, Breitbart contributors, and a recent high school graduate. A ProPublica analysis notes that the beachhead teams likely have “considerable influence in the absence of high-level political appointees.”

A searchable list of the hires by agency can be found here.

John Moss

John Moss’s Legacy Best Weapon Against Disinformation

“Now, in the early stages of an administration that regularly deploys falsehoods and unsupported claims, John Moss…may just be the most important Trump-slayer you’ve never heard of.” Mary Finn has an excellent read on John Moss’s work to pass the 1966 Freedom of Information Act, arguing that the law may be the public’s “most effective weapon in getting truthful information from the Trump administration.” Moss said in a 1956 interview, “The present trend toward government secrecy could end in a dictatorship. The more information there is made available, the greater will be the nation’s security.”

Nate Jones has more on Moss, as well as a review of the biography “People’s Warrior: John Moss and the Fight for Freedom of Information and Consumers Rights” by Michael R. Lemov, here.

NSA Arguments Against Successful FOIA Requester turn FOIA on its Head

The National Security Agency is arguing in court that Buzzfeed reporter Jason Leopold’s successful track record suing agencies who wrongfully withhold records under the FOIA is a valid reason to stonewall his FOIA request. The NSA conflates Leopold’s litigation track record (he’s brought more FOIA lawsuits against the government than any other news outlet besides the New York Times) with the agency’s own backlog, and turns the reason behind Leopold’s FOIA lawsuits on its head, saying Leopold wants “to jump to the front of the queue, ahead of requesters who have chosen not to litigate, many of whom almost certainly lack the necessary financial resources.”

The truth, as C.J. Ciaramella points out, “Leopold and the handful of other high-volume requesters and litigators are only outliers because of their persistence in fighting back against agencies that flout the spirit and, quite often, the letter of federal record law.”

The content of Leopold’s FOIA is likely relevant – his initial request sought three-years’ worth of NSA Inspector General reports and the NSA’s semi-annual reports to Congress. Before going to court the agency said it had a whopping 22,218 pages of documents covering the last three years alone (154 IG investigations and 137 reports, with about 500 pages of semi-annual reports).

Leopold has a Twitter thread on the suit that anyone interested in this obfuscation should read in its entirety.

DOJ Makes Bad Agency Appeal Arguments in Court – Again

Justice Department trial attorney Alice Shih Lacour defended the Environmental Protection Agency’s decision not to consider an appeal timely – even though it was in the agency’s possession within the appeal timeline – in court on the grounds that, while the agency had received the appeal through FOIAonline in time, it had not been logged into the agency’s system by a staff member until after the appeal deadline. Harry Hammitt of Access Reports notes that in Competitive Enterprise Institute v. United States Environmental Protection Agency, Civil Action No. 15-215 (RMC), U.S. District Court judge for the DC Circuit Rosemary Collyer – while upholding the adequacy of the agency’s search – found that the agency “clearly received the Institute’s appeal” on the day it was submitted – not logged into the system – and failed to respond in a timely basis. If the DOJ stopped upholding bad agency FOIA practice, requesters wouldn’t be forced to sue for the documents they are entitled and agencies would feel more pressure to follow the law.

PCLOB Down to One Part-Time Voting Member

Emails won through a FOIA request by The Intercept show that the Privacy and Civil Liberties Oversight Board (PCLOB) is down to a single voting member – meaning it can’t form the statutory quorum necessary for its most vital functions. PCLOB, an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties, is meant to have five members but is now comprised of only one part-time board member. This means, as Jenna McLaughlin reports, the agency “‘may not initiate new advice or oversight projects’ or offer advice to the intelligence community.” PCLOB additionally cannot “submit to Congress either its semi-annual reports, which detail the conclusions of its investigations, or its plans for declassifying information it has uncovered. The board can’t hold public meetings, which have offered the chance for public input in the past, or give formal recommendations to the intelligence community.” The sole member may continue ongoing investigations, testify before Congress, and give advice to intelligence agencies “without purporting to speak for PCLOB as an agency or board.”

For more on the challenges PCLOB has faced over the years, go here, here, and here.

California Lawmakers Seek Info on Immigration with FOIA

Two California lawmakers – Senate President Pro Tem Kevin De Leon and Assembly Speaker Anthony Rendon – filed a FOIA request with Immigration and Customs Enforcement for more information on immigration activities. The lawmakers specifically sought information on “the federal government’s policy when it comes to ‘sensitive’ areas such as churches, schools and hospitals.” Last month federal officials detained hundreds of people after Trump pledged a “crackdown” on illegal immigration.

The California Supreme Court recently ruled that government officials’ private devices and personal email are subject to public records requests when officials use them to conduct government business. The unanimous opinion found, “The whole purpose of CPRA is to ensure transparency in government activities. If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device, sensitive information could routinely evade public scrutiny.” The Electronic Frontier Foundation lauded the opinion, saying the “decision will have wide-ranging impact on how public records are treated throughout the state, whether that’s elected officials communicating with lobbyists through Twitter direct messages or law enforcement officers exchanging controversial text messages on their personal smartphones.”

FOIA Shows H.R. McMaster Reprimanded for Handling of Sexual Assault Case

A FOIA request to the Army shows that national security advisor H.R. McMaster was rebuked in 2015 for his handling of a sexual assault case involving two junior officers. According to an Army Inspector General report, “McMaster violated Army regulations by permitting the two lieutenants to attend the service’s elite Ranger School even though they were under criminal investigation.” McMaster chose to allow the officers to attend Ranger School while under investigation contrary to Army regulations because, he told investigators, he “did not want to interfere with the two lieutenants’ military training.” A special waiver from the Army’s deputy chief of staff at the Pentagon would also have allowed the lieutenants’ attendance; McMaster informed investigators he was unaware of the waiver requirement.

Gen. Daniel Allyn, the Army’s vice chief of staff, told McMaster in a “memorandum of concern” obtained through FOIA, “I am disappointed with your actions. As a senior leader in the United States Army, you are expected and required to understand and comply with all laws and regulations.” The memo does not appear in McMaster’s personal file.

Sunshine Week Around the Corner

Have you reserved your space for the U.S. National Archives Sunshine Week event on Monday March 13? On Monday the National Security Archive’s director Tom Blanton will join Ralph Nader, Dean of the University of Maryland’s College of Journalism Lucy Dalglish, and Tom Susman of the American Bar Association at the U.S. National Archives for a panel on FOIA After 50. Space is limited for the event, which will be held in NARA’s McGowan theater, so please register here by Friday, March 10.

Indonesia Declassified

Steve Aftergood reports “The National Declassification Center has completed declassification review of more than half of the classified files from the U.S. Embassy in Djakarta, Indonesia from the turbulent years of 1963-1966. The remainder of the task is expected to be completed by this summer.” The declassification of this set was “prioritized in response to public comments.”

The National Security Archive, whose Indonesia/East Timor documentation project that has sought to identify and seek release of thousands of secret U.S. documents concerning U.S. policy toward Indonesia and East Timor from 1965-1999, is happy to see the “indexing on demand” at the NDC produce such good results, and looks forward to more researcher-driven declassification.

How did the FBI Discuss Russia’s Cyber Intrusions in the Late 90s?

A new FOIA release from the FBI to the National Security Archive reveals more information on “Moonlight Maze,” the investigation into sophisticated cyber attacks on the Pentagon’s computer system – as well as computer systems for NASA, the Energy Department, and prestigious private institutions – in the late 1990s that were traced back to Moscow.

The Secret FBI memo is a less-redacted (though still quite redacted) version of a memo released in 2012, and contains new information on the bureau’s discussion of possible responses to the computer intrusions. According to the document, “the attendees also agreed that the NIPC should coordinate the development of a passive ‘honeypot(s)’ at Army and/or Navy victim sites that may assist in providing information about the intruder.” The group also discussed the feasibility of creating a second passive “honeypot(s)” containing a “beacon” file, which would plant a source code in a file that would feed information back to investigators once opened.

This document is one of 10 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, March 8.

TBT pick – Saddam’s Iron Grip

This week’s #tbt pick is a 2005 posting on “Saddam’s Iron Grip” – featuring a series of declassified U.S. intelligence documents and other U.S. agency reports on Saddam Hussein’s human rights abuses. The posting contains a number of documents produced by U.S. agencies from 1975 through 2005 concerning the Iraqi regime’s policies and activities directed at maintaining itself in power and eliminating or neutralizing opposition to the regime.

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM (Freedom of Information Summary) email newsletter.

Happy FOIA-ing!

 

Police Body Camera Footage from Tucson Immigration March Raises Questions, Sunshine Week 2017, and More: FRINFORMSUM 3/2/2017

March 2, 2017

Body Cam Footage Won through FOIA Shows Tucson Police Shoving 86-Year-Old Woman to Ground at Immigration Protest

tpd

Police body camera footage obtained from a FOIA request submitted by Tucson News Now shows a Tucson Police Department officer shoving an 86-year-old-woman to the ground at a National Day without Immigrants protest on February 16. The video also shows the police officer pepper-spraying a 65-year-old female retired schoolteacher who reached down to help the older woman up. The Washington Post reports that “Tucson Police Chief Chris Magnus said the department is investigating but told reporters that he thinks his officers handled the crowd appropriately.”

Access to police body camera footage under state and local Freedom of Information laws varies by locality. The Reporters Committee for Freedom of the Press and NYU Law School’s Brennan Center for Justice each have helpful guides that can help requesters navigate the laws in their area.

“How Not to Build a FOIA Portal” by the FBI 

The FBI officially stopped receiving FOIA requests through email this week, in a move that will make it much more difficult for requesters.

The bureau is now forcing requesters who want to file electronic requests to use an inadequate FOIA portal that is not getting off to a good start. The FBI left restrictions that it had promised to remove in place – like requirements to provide a phone number with a request – until late in the day, and the portal still has no field for requester fee category (like “news media” for example) and doesn’t allow you to check the status of your request.

One of the most frustrating aspects of the FBI’s move is the House’s 2016 FOIA Oversight and Implementation Act (H.R. 653), which unanimously passed the House, but was ultimately not adopted into law, required agencies “at a minimum” to accept FOIA requests via email. This commonsense provision embodied the spirit of the transparency law by allowing requesters to submit FOIA requests via their preferred platform – increasingly email – over mailing in physical requests, faxing them, or using oft-clunky FOIA portals.

The FBI should work to increase access to its records by both bringing its FOIA portal up to snuff, and begin accepting requests via email again.

swlogo2-300x176Sunshine Week 2017 Begins on March 12

Sunshine Week, the national celebration of open government and freedom of information, kicks into full gear Monday, March 12th. Every year, the news media, nonprofits, libraries, schools, and the government debate the best ways to strengthen the public’s right to know and how to achieve a more democratic, transparent government.

On Monday March 13th the National Security Archive’s director Tom Blanton will join Ralph Nader, Dean of the University of Maryland’s College of Journalism Lucy Dalglish, and Tom Susman of the American Bar Association at the U.S. National Archives for a panel on FOIA After 50. NARA will also host Chair of the House Oversight and Government Reform Committee Jason Chaffetz, and a panel on “Government at Your Fingertips,” featuring Adam Marshall of the Reporters Committee for the Freedom of the Press, co-founder of MuckRock Michael Morisy, and former Office of Government Information Services director Miriam Nisbet, among others. Space is limited for the event, which will be held in NARA’s McGowan theater, so please register here by March 10.

Other cool events, like the 3rd Annual Foilies Awards, the FOIA and Journalism Workshop, and Cops & Cameras: privacy, transparency and limitations, can be found on the Sunshine Week website.

37 Leaks

37 “crime reports” concerning leaks of classified information were submitted by agencies to the Justice Department last year. The figure comes from a FOIA request to the DOJ National Security Division. Steve Aftergood notes that this number is double the amount of cases from 2015, but on course with the average number of cases between 2009 and 2015, saying that “What makes the latest number of reported leaks interesting is not that it deviates sharply from past experience but that it does not. Evidently there is a baseline of leakiness that persists even in the face of strenuous official efforts to combat leaks.”

A separate post from Aftergood points out there “is no law that categorically prohibits all leaks of classified (or unclassified) information. Instead, there is a patchwork of statutes that outlaw some unauthorized disclosures under some circumstances.” Aftergood goes further into detail with the Washington Post here.

President Dwight D. Eisenhower (right) with Secretary of State John Foster Dulles: architects of a foreign policy identified with rhetorical calls for anti-Communist “rollback” but characterized more accurately by James Conant’s famous dictum to “keep the pot simmering.” (Photo credit: unknown)

President Dwight D. Eisenhower (right) with Secretary of State John Foster Dulles. (Photo credit: unknown)

Eisenhower Concluded Neither U.S. Military Operations Nor Popular Uprisings Were Feasible in Soviet-Controlled Eastern Europe

President Dwight D. Eisenhower ruled out military intervention in Eastern Europe early in his administration, despite campaign rhetoric about rolling back world Communism, according to a U.S. Defense Department draft history published by the National Security Archive.

Fear of provoking war with the Soviet Union drove the decision, the study finds, based on research in a variety of government and public sources.

The Archive’s latest posting covers the period leading up to the Hungarian revolt of 1956. The author is Dr. Ronald D. Landa, formerly with the State Department’s Office of the Historian and the Historical Office of the Office of the Secretary of Defense. This is the second of three studies he prepared for the OSD during 2011 and early 2012. They were declassified over the next few years, albeit with a number of passages left heavily excised.

FOIA Search Survey Open Until March 8

The National Security Archive and the Project on Government Oversight’s search survey for both FOIA processors and FOIA requesters will remain open for one more week. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.

Please take 10-15 minutes to fill out the survey and help us circulate it as widely as possible.

TBT – A Different October Revolution

East German demonstrators take to the streets in Leipzig, October 9, 1989.

East German demonstrators take to the streets in Leipzig, October 9, 1989.

This week’s #TBT pick is a 2009 posting by Svetlana Savranskaya and Tom Blanton on dismantling the Iron Curtain in Eastern Europe. The posting marks the 20th anniversary of East German demonstrators taking “to the streets in Leipzig starting their own October revolution that would bring down the Berlin Wall a month later.” The documents published are the first in a series of document postings on the revolutions of 1989 in Eastern Europe and “show that the Berlin Wall actually started falling on March 3, 1989, when Hungarian Prime Minister Miklos Nemeth informed Soviet General Secretary Mikhail Gorbachev of the decision of the Hungarian Central Committee to ‘completely remove the electronic and technological defenses from the Western and Southern borders of Hungary.’”

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM (Freedom of Information Summary) email newsletter.

Happy FOIA-ing!

FOIA Releases Shed Light on al-Awlaki Role in Failed 2009 Bombing, Scott Pruitt’s Close Ties to Energy Industry, and Much More: FRINFORMSUM 2/23/2017

February 23, 2017

00awlaki-tear3-master675

FOIA Request Reveals Anwar al-Awlaki’s Role in Failed 2009 Bombing

A federal judge’s order that the FBI conduct a line-by-line review of documents on radicalized American imam Anwar al-Awlaki’s role in an attempted 2009 airline bombing forced the agency to release hundreds of historically significant pages. The documents were initially requested by New York Times reporter Scott Shane, then working on a book about Awlaki – “the first American citizen deliberately killed on the order of a president, without criminal charges or trial, since the Civil War.” The FBI refused to release them, at which point the paper sued. Two years later, the agency was forced to release the records – FBI interviews with Umar Farouk Abdulmutallab, an al Qaeda operative convicted of attempting to blow up a flight to Detroit on December 25, 2009.

The interviews are significant for a number of reasons. First and foremost, they “suggest that the Obama administration had ample firsthand testimony from Mr. Abdulmutallab that the cleric oversaw his training and conceived the plot.” The documents also bolster arguments by experienced interrogators that torture is not useful or necessary to extract important information from suspects; the detailed descriptions interrogators were able to glean of the al Qaeda compound in Yemen provided by Abdulmutallab “were so precise that it is likely they have helped shape targeting decisions in the American drone campaign” there.

In 2015 Shane compiled and edited “The Anwar al-Awlaki File” for the National Security Archive – a posting containing 22 documents obtained under the FOIA that sheds significant light on the American government’s knowledge and understanding of the cleric.

Oklahoma FOIA Release Shows Pruitt’s Close Ties with Energy Industry

7,500 pages of emails and other records released under FOIA to the Center for Media and Democracy two days after Scott Pruitt was confirmed as the new head of the Environmental Protection Agency show Pruitt “closely coordinated with major oil and gas producers, electric utilities and political groups with ties to the libertarian billionaire brothers Charles G. and David H. Koch to roll back environmental regulations.” A move by Senate Democrats to delay Pruitt’s confirmation vote until after the emails from Pruitt’s tenure as Oklahoma Attorney General were published was defeated by Republicans. Many of the emails had been published by the New York Times in 2014, but the totality of this week’s release “captures just how much at war Mr. Pruitt was with the E.P.A. and how cozy he was with the industries that he is now charged with policing.”

Judge Tells FBI Argument for Exemption “Falls Woefully Short,” but Bureau Gets Another Chance to Justify Withholdings

U.S. District Court Judge Amit Mehta told the FBI’s lawyers in a FOIA lawsuit that their argument for invoking FOIA’s law enforcement exemption “falls woefully short” and was “particularly inadequate.” The case was brought by the Electronic Privacy Information Center, which sued the bureau for “copies of the FBI’s ‘privacy impact assessments’ and ‘privacy threshold analyses’ on various bureau databases containing personal information.” The bureau released 2,200 redacted pages, arguing the withheld information would compromise law enforcement methods or techniques. Mehta disagreed, saying the agency didn’t prove that the redacted information was actually compiled for law enforcement purposes; Mehta “also faulted the FBI for failing to explain in detail how it searched for records responsive to EPIC’s request.” Josh Gerstein notes EPIC’s win may only be temporary, “since the judge said he would give the FBI and its Justice Department attorneys another crack at justifying the withholdings and explaining the search process.”

searchsurvey2How Does Your Agency Conduct a FOIA Search?

The National Security Archive and the Project on Government Oversight are distributing an unofficial survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.

Please take 10-15 minutes to fill out the survey and help us circulate it as widely as possible.

CBP Gives 5-Day Deadline for “Still Interested” Letter 

The Memory Hole’s Russ Kick recently posted a photo of a FOIA response from Customs and Border Protection giving him only five days to respond to a “still interested” letter before closing the request, which concerned Trump’s January 27 Executive Order on immigration. In other words, the CBP is issuing “still interested” letters with an absurdly short response time for FOIA requests that are, at most, 27 days old.

The insult of the five-day deadline is made worse by the fact that there is nothing in the FOIA itself that allows an agency to close a request if the agency does not receive a response from a “still interested” letter. According to the statute (5 USC § 552(a)(3)(A)), once a request is submitted that both “(i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, [an agency] shall make the records promptly available to any person.”

CBP told the Office of Government Information Services (OGIS) during its FY 2016 FOIA compliance report that CBP’s “FOIA Office has not used ‘still interested’ letters since FY 2012.” OGIS also noted in its compliance report that, “In 2012, CBP administratively closed 11,000 FOIA requests and sent letters to the requesters informing them of the closure and that they should contact the agency if they were still interested in the agency processing the request; the agency had to re-open the requests and process them.” Either CBP was being untruthful with OGIS while the ombuds office was conducting its FY2016 report, or the agency has decided to drastically change course on issuing these letters in the time since OGIS published its compliance report. (OGIS has also issued several good reports on agency use of “still interested” letters that CBP should re-read, noting first among its findings that the data “does not capture requester frustration” at receiving these letters.)

CBP’s letter is also in violation of guidance issued by the Justice Department’s Office of Information Policy (OIP) in July 2015, which clearly requires agencies provide requesters a reasonable amount of time to respond to a still interested letter (30 days at a minimum).

5days

CBP isn’t alone in trying to proactively close FOIA requests. Amie Stepanovich, the policy manager for Access Now, recently spotlighted an absurd FOIA response from the Interior Department that said, “We expect to issue our determination response to you by March 9, 2017. If you do not receive our response by that date, you may consider your request administratively denied and file an appeal.”

interior

B5 Upheld in State Department Handling of Clinton Emails

U.S. District Judge James E. Boasberg is upholding the State Department’s use of FOIA’s exemption 5 – the deliberative process exemption – to withhold agency discussions about Hillary Clinton’s emails in a FOIA lawsuit brought by Judicial Watch. In the ruling Boasberg found, ““A document sheds light on misconduct when it ‘reflects any governmental impropriety,’ but not when it merely reflects a ‘part of the legitimate government process intended to be protected by Exemption 5.’” Judicial Watch has not yet announced if it will appeal the decision.

Child Care Center Emergency Plans Were Among Building Info Endangered by GSA Cloud Security Lapses

A 2014 General Services Administration Office of Inspector General report found that sensitive building information – which could be employed in attempts to damage people or property – was available to individuals without a need to know.

Specific sensitive but unclassified building information that was available included:
– Child care center emergency plans;
– Evacuation routes;
– Detailed vulnerability assessments containing explosive blast loads for courthouses and blueprints pinpointing location of judges’ chambers;
– Security and mail screening procedures for a National Nuclear Security Administration campus.

The report was released in January 2017 because the vulnerabilities “no longer exist,” and is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, February 22.

FEMA Didn’t Realize it was Ordering Lethal Ricin for Years

FOIA-released records obtained by USA TODAY show that “Officials at a federal training facility that mistakenly exposed thousands of first responders to deadly ricin toxin were worried five years ago that their vendor had shipped the wrong type of powder.” Alison Young reports that FEMA and the Department of Homeland Security are currently investigating the incident, which FEMA blames on a vendor whose identity is redacted from the released documents, but notes there’s been no explanation why it took FEMA so long to spot the potentially lethal problem.

TBT Pick – Iraq: The Media War Plan

top_image

This week’s #tbt pick is a 2007 posting from our Iraq Project that spotlights a Defense Department White Paper and PowerPoint briefing that recommend a “Rapid Reaction Media Team” that would “serve as a bridge between Iraq’s formerly state-controlled news outlets and an ‘Iraqi Free Media’ network.” According to analysis by Iraq Project Director Joyce Battle, “the rapid reaction team would create narratives leading Iraqis to feel, Pentagon planners enthused, like North Koreans who turned off state TV at night and in the morning turned on ‘the rich fare of South Korean TV . . . as their very own.’ Foreshadowing the unfolding of the U.S. government’s Iraq media policy, preliminary work would not come cheap – Defense Department planners recommended paying two U.S. consultants $140,000 each for a campaign of six months duration.”

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

 

Scottish FOI Release on Dealings with Trump Golf Course, NARA Guidance on Presidential Records, and More: FRINFORMSUM 2/16/2017

February 16, 2017

trumpfoiScottish FOI Releases Shed Light on Local Law Enforcement Dealings with Trump Team  

Scottish police have released 49 documents in response to FOI requests on “its dealings with Trump International Golf Links Scotland (TIGLS) since 2009.” The Ferret reported that the FOI documents show concerns with private security hired by Trump and worry “that the Trump organisation failed to understand Scotland’s land reform law giving the public the right to roam across golf courses.” According to one email, the police note that the Trump organization’s “belief is that the land is private and that they will be able to restrict access unconditionally. This is obviously not the case and this is a potential area of conflict that will need to be managed diplomatically.”

NARA Releases Guidance on Presidential Records

The U.S. National Archives recently released its guidance on presidential records. The 16-page manual lays out which offices the Presidential Records Act applies to (including but not limited to the White House Office, the Office of the Vice President, the National Security Council, and the Office of Administration), what the requirements are, and reminds readers that, “The PRA states that the incumbent President must obtain the views in writing of the Archivist before disposing of any Presidential records.” NARA lays out a few key steps the administration should take to ensure the effective implementation of the PRA, including providing a briefing for staff, involving NARA at the “design stage of electronic records systems,” and establishing separate files for personal records. The guidance also contains a useful guide on how the PRA intersects with FOIA:

pra-and-foia

We Could Lose 200 Million in Nuclear War and Still be OK, According to Air Force Official

The Air Force chief of staff told the Joint Chiefs at a September 1971 meeting that in a nuclear war the United States “could lose two hundred million people and still have more than we had at the time of the Civil War.” The quote – and very questionable math – comes from a recently declassified diary entry by JCS Chairman Thomas Moorer, recently published for the first time by the National Security Archive.

The notes are not only an eye-opening acknowledgement of certain senior military attitudes about nuclear survivability in the early 1970s, but are part of a critically important discovery – the existence among Admiral Moorer’s files of at least a partial record of JCS meetings that were thought to have been lost after the Chiefs in the late 1970s destroyed their entire collection of minutes going back to 1947.

Read the astounding documents for yourself here.

Take Our FOIA Search Survey

The National Security Archive and the Project on Government Oversight are distributing an unofficial survey for both FOIA processors and FOIA requesters on how agencies conduct searches. The goal of the survey will be to collect data on disparate agency search methods and software – and the more people who fill it out, the more useful the collected data will be.

Please take 10-15 minutes to fill out the survey and help us circulate it as widely as possible.

Senator Wyden Urges FBI to Reinstate FOIA Email

Sen. Ron Wyden (D-Oregon) recently wrote FBI FOIA head David Hardy and urged his agency to continue accepting FOIA requests submitted by email. The FBI recently and abruptly announced they will stop accepting FOIA requests via email by March 1, stating that requesters wanting to file electronic requests should use the beta version of its FOIA portal, which will “significantly reduce paper costs, mailing costs, and response times associated with FOIPA records requests.”

There are numerous problems with the FOIA portal, however. Wyden notes, among other things, that the portal places an arbitrary 3,000-character limit on requests, and the language is ambiguous about “whether the online FOIA system can be used to request internal FBI communications, such as memos, emails, guidance, or a wide range of other important internal agency records.” The portal also requires a requester to indicate whether or not they are in the U.S. – even though U.S. citizens and foreign nationals alike can use FOIA and submit requests regardless of their location. Wyden also asks Hardy to explain why the bureau decided to develop its own portal rather than opt into FOIAonline, and argues that the change creates more work for both FOIA requesters and FBI staff.

Backlog Numbers Not Improving

The Department of Health and Human Services (HHS) is the only cabinet level agency that was able to meet President Obama’s 2009 instruction to reduce FOIA backlogs by 10 percent per year. Out of the 15 federal departments surveyed by the National Security Archive, HHS reduced its backlog by 12.7 percent per year. The average for all federal departments was an 8.21 percent increase. The departments of Homeland Security, State, and Housing and Urban Development are some of the worst offenders, with an average increase of nearly 30 percent per year. Take an in-depth look at the numbers here.

perroots_high_resAble Archer 83 and Leonard Perroots

The National Security Archive’s FOIA project director and Able Archer 83 expert, Nate Jones, recently wrote a blog about the death of  Air Force lieutenant general and director of the Defense Intelligence Agency Leonard H. Perroots. Jones first became familiar with Perroots while reading the declassified President’s Foreign Intelligence Advisory Board report on Able Archer 83 and the 1983 War Scare. According to the report, which Jones won the release of in 2015, NATO nuclear exercise Able Archer 83 so closely represented a nuclear launch that the USSR began readying its nuclear forces for a possible first strike, and the United States “may have inadvertently placed our relations with the Soviet Union on a hair trigger.”

Jones notes that “Before Perroots retired from the DIA in 1989, he sent a final letter stating his disquiet over the lack of treatment given to the War Scare.” Unfortunately, Jones was informed by the DIA – on the same day Perroots’ death was reported – that the agency could not find its copy of Perroot’s letter about his role during Able Archer 83 and his view of the danger.

Want to learn more about Able Archer? Check out Jones’ discussion of the war scare and his new book on C-SPAN.

The New York Times’ obituary on Perroots can be found here.

When U.S. Intel had a Handle on Soviet Cyber Capabilities

A 1973 CIA study found that the Soviet RYAD computer program was “in serious trouble” and in need of allied and Western assistance. The report concluded that, even in the event the program became fully effective, it would probably “keep the Soviet computer industry technologically inferior to those in the United States, Western Europe, and Japan.” The document also includes some interesting tables on the technical specifications of selected RYAD computers, other Soviet computers, and USSR facilities for RYAD production.

This document is one of 11 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, February 15.

Sources and Methods

The Wilson Center has just launched a new blog, Sources and Methods, “that showcases fresh archival evidence and presents new insights into contemporary international history.” Christian Ostermann writes, “The short, accessible, and engaging content on Sources and Methods will include:

●     Archival highlights and commentaries on documents recently added to DigitalArchive.org,
●     History ‘explainers‘ and commentaries which bridge the past and present,
●     Field reports from archives and libraries,
●     Teasers for new books and other major publications in international history,
●     Debates among multiple parties on historically-relevant topics,
●     Information on new, unique, or under-utilized resources.”

TBT Pick – When GOP Presidents Led the Climate Change Debate

Today’s #tbt pick is a 2015 posting from our Environmental Diplomacy project on how Republican presidents Reagan and Bush (41) actively promoted measures to combat climate change. The post notes that “Both presidents’ secretaries of state, George P. Shultz and James A. Baker III, played key roles in blocking efforts by other Cabinet secretaries to frustrate implementation of more environmentally friendly policies. For example, memos for senior State Department officials in today’s posting note that ‘Global climate change is the most far reaching environmental issue of our time’ and that notwithstanding the need for continued research, ‘We simply cannot wait – the costs of inaction will be too high.’”

Sign Up!

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!