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FOIA Federal Advisory Committee Highlights Email Preservation, FOIA Searches: FRINFORMSUM 10/19/2017

October 19, 2017

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

FOIA Federal Advisory Committee Highlights Email Preservation, FOIA Searches

The Federal FOIA Advisory Committee met today (video available here and other resources here), with updates from the three subcommittees (searches, efficiencies and resources, and proactive disclosure), and a very interesting presentation on NARA’s email Capstone policy from Jason Baron, formerly NARA’s director of litigation and now counsel at Drinker Biddle LLP.

Highlights from the meeting include a reminder that OMB has – by all visible accounts – yet to take any action on the recommendation of the previous session of the Advisory Committee: that it updates its fee guidance, which currently dates from 1987 and is missing a key word.

The Searches subcommittee unveiled a draft set of recommendations to improve search capabilities and promote accountability. The recommendations include, but are not limited to:

  • Requesting that the Justice Department collect detailed information as part of each agency’s Chief FOIA Officer Report regarding the specific methods and technologies agencies are using to search their electronic records, particularly email, in response to FOIA requests.
  • Increasing the ability for FOIA offices to procure technology to aid federal agencies to more efficiently conduct records searches to the greatest extent possible.
  • Ensuring that agency emails can be efficiently and accurately searched electronically by FOIA offices.
  • Weighing the benefits of using eDiscovery tools to conduct more accurate and timely FOIA searches against the potential legal costs of untimely or inadequate FOIA searches.

(Earlier this year the National Security Archive and the Project on Government Oversight teamed up to conduct an online survey for both FOIA processors and requesters to better understand how agencies search for records. The summary and survey results can be found here.)

One of the most important issues for the Committee to issue guidance on this session will be 508 compliance (go here for more on 508, which refers to a section of the Rehabilitation Act that has required agencies to ensure that persons with disabilities have comparable access to government information as persons without disabilities). While not yet out of the Subcommittee, recommendations from the Committee should underscore that documents should already be being created 508 compliant by agencies before they are ever requested under FOIA or posted proactively. Further, agencies should only purchase FOIA processing software that produces documents that are 508 compliant. But perhaps most importantly, non-compliance with Section 508 of the Rehabilitation Act should not be used as a justification by agencies to remove documents from their FOIA websites or refuse to post information proactively.

FOIA Helps Show How Industry Lobbying Hamstrung DEA’s Most Potent Tool for Regulating Drug Companies

A must-read Washington Post/60 Minutes investigation exposes the drug industry’s covert, years-long effort to weaken the Drug Enforcement Administration – particularly the office that regulates the drug industry, the Office of Diversion Control – in its ability to suspend suspicious opioid sales to distributors across the country.

Prior to the passage of April 2016’s Ensuring Patient Access and Effective Drug Enforcement Act, the DEA routinely stopped suspicious sales (like when a drug company sends 258,000 hydrocodone pills in one month to a West Virginia town of 2,924) with an immediate suspension order. But the new bill “changed four decades of DEA practice” by requiring the agency to show that drug shipments did not just pose an “imminent danger” to the community, but “demonstrate that a company’s actions represent ‘a substantial likelihood of an immediate threat,’ a much higher bar.”

FOIA requests submitted by the Post and 60 Minutes show the bill had the drug industry’s desired effect; “Not a single [suspension] order has targeted a distributor or manufacturer since late 2015.” The DEA and the Justice Department have “denied or delayed” dozens more relevant FOIA requests on the issue, and the Post is suing the DOJ for the remainder of the records.

ICE Scrubs Documents on Controversial Deportation Program from FOIA Library

Immigration and Customs Enforcement (ICE) has re-launched its FOIA library after it spent nearly two weeks offline on ICE’s claim it was under review. But the new site is now at least 77-documents lighter. Russ Kick was first to note that the agency took the opportunity to scrub dozens of documents on the agency’s controversial “Secure Communities” program, a deportation program that was ended by the Obama administration and restarted under Trump. Kick has posted all of the deleted documents on

FOIA Releases Hint that Coal Industry Not Optimistic about Domestic Growth, Even Under Trump

FOIA requests to the Bureau of Land Management show coal industry executives acknowledging “the continuing decline in demand” for coal, and in some instances withdrawing lease applications for federal coal mining. The FOIA releases come after the Trump administration’s reversal of President Obama’s 2016 three-year moratorium on federal coal leases and the BLM’s request that companies update their applications in light of the reversal. The Washington Post’s Adam Federman notes that “In the six months since that announcement at the EPA, companies have withdrawn five of 44 pending lease applications, and at least eight are indefinitely on hold.”

The FOIA responses show coal companies citing “depressed” market conditions in withdrawing their leases, suggesting coal companies “have begun to lose faith in the long-term viability of the domestic market” and undercutting the Trump administration’s efforts to revive it by reversing Obama-era policies.

US Embassy Tracked Indonesia Mass Murder in 1965

The US government had detailed knowledge that the Indonesian Army was conducting a campaign of mass murder against the country’s Communist Party (PKI) starting in 1965, according to newly declassified documents recently posted by the National Security Archive.  The new materials further show that diplomats in the Jakarta Embassy kept a record of which PKI leaders were being executed, and that US officials actively supported Indonesian Army efforts to destroy the country’s left-leaning labor movement.

The 39 documents come from a collection of nearly 30,000 pages of files constituting much of the daily record of the US Embassy in Jakarta, Indonesia, from 1964-1968. The collection, much of it formerly classified, was processed by the National Declassification Center in response to growing public interest in the remaining US documents concerning the mass killings of 1965-1966.  American and Indonesian human rights and freedom of information activists, filmmakers, as well as a group of US Senators led by Tom Udall (D-NM), had called for the materials to be made public.

Trump’s Iran Misstep

“But the president missed the real takeaway from his stroll through history,” writes the National Security Archive’s Malcolm Byrne in his recent Washington Post article on Trump’s decertification of the Iran nuclear deal. “Precisely because the relationship has been so bitter, getting a major deal of any kind with Tehran — even one as unsatisfying as the Joint Comprehensive Plan of Action (JCPOA) — was a remarkable feat that is unlikely to be replicated. This is the reality of the deal that Trump and other critics simply haven’t grasped — and why they’re on track to make a major, perhaps irreversible, mistake in U.S.-Iran relations.” The article can be read in its entirety here.

Documenting US Role in Democracy’s Fall and Dictator’s Rise in Chile

The New York Times recently highlighted National Security Archive analyst Peter Kornbluh’s work on the Chilean Museum of Memory and Human Rights exhibit, “Secrets of State: The Declassified History of the Chilean Dictatorship.” “To see on a piece of paper, for example, the president of the United States ordering the C.I.A. to preemptively overthrow a democratically elected president in Chile is stunning,” Mr. Kornbluh told the Times. “The importance of having these documents in the museum is for the new generations of Chileans to actually see them.”

Peter Kornbluh curated the exhibition, which includes redacted documents and C.I.A. memos. Tomas Munita for The New York Times

The FOIA Ecosystem

Are you an American Society of Access Professionals member who will be in the D.C. area November 16? If so, please join us for a Food For Thought Training Seminar featuring National Security Archive director Tom Blanton. Blanton will discuss the FOIA ecosystem, lessons learned from his decades in the FOIA trenches, the symbiotic relationship between requesters and processors, and how both sides can work together to improve the FOIA process and release more information to the public. RSVP information can be found here.

The Cuban Missile Crisis at 55

The US military drew up plans to occupy Cuba and establish a temporary government headed by a US “commander and military governor” during the 1962 missile crisis, according to the recently declassified “Military Government Proclamation No. 1” posted Monday by the Archive to mark the anniversary.

“All persons in the occupied territory will obey immediately and without question all enactments and orders of the military government,” stated the proclamation. “Resistance of the United States Armed Forces will be forcefully stamped out. Serious offenders will be dealt with severely,” it warned. “So long as you remain peaceable and comply with my orders, you will be subjected to no greater interference than may be required by military exigencies.”

Defense Department redactions obscure the faces and insignia of honor guard members in many of the war casualty images.

TBT Pick – Return of the Fallen

This week’s #TBT pick is from 2005 and details the Pentagon’s release – in response to a FOIA lawsuit – of hundreds of previously secret images of casualties returning to honor guard ceremonies from the Afghanistan and Iraq wars and other conflicts.

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ICE FOIA Library Still Down: FRINFORMSUM 10/12/2017

October 12, 2017

ICE FOIA Library Still Down

U.S. Customs and Immigration Enforcement took down its FOIA library on October 3 “for review” – and has yet to reactivate the site. MuckRock’s Emma Best drew attention to the issue, which is important not only because the library houses, among other things, the agency’s FOIA reports that ICE is required to make public under the Electronic Freedom of Information Act Amendments of 1996. The scenario where any legitimate review would require the site being taken entirely offline – much less for well over a week –, is hard to fathom. Hopefully Senators Patrick Leahy (D-VT), who sponsored the bipartisan 1996 bill, and Judiciary chair Chuck Grassley (R-Iowa), can get to the bottom of why the agency is not complying with the 20-year-old E-FOIA amendments.

Keen Reporting Gets Broad CBP FOIA Carve-Out Removed from House Border Bill, but Bill Still Bears Watching

U.S. Representative Martha McSally (R-AZ) pulled a provision from border bill making its way through the House (H.R. 3548) -that would have exempted Customs and Border Protection (CBP) from FOIA requirements within 100 miles of the border- but only after reporting from the Tucson Sentinel shed light on a move that would have allowed the agency to “operate nearly as secret police, without any public accountability.” McSally, after the story broke, “said during a House hearing Tuesday that providing a loophole from public disclosure laws was ‘not the intent of this bill,’ and offered an amendment to clarify that ‘nothing in that section of this act will allowing waiving of FOIA responsibilities.’” Her amendment to remove the carve-out was unanimously approved in committee during a markup session the day after the Sentinel’s initial report.

No explanation was provided about the carve-out’s initial inclusion in the bill.

Interior Department Brainstorms Ways to Weaken FOIA – Among Other Bad Ideas

Notes from a closed Interior Department meeting hosted by the Bureau of Land Management on September 21 and attended by local government officials show a wide-ranging effort to weaken environmental laws – and the agency’s compliance with the Freedom of Information Act. The notes were provided to The Washington Post by a group that obtained the call-in information but was not on the invitation list. According to the Post, “They talked about working around environmental analyses that determine whether infrastructure projects harm ecosystems, about stripping conservation groups of the power to sue the BLM if it wrongly approves a project and about limiting the number of federal Freedom of Information Act requests that allow the public to scrutinize how decisions were made.” Any effort to restrict the public’s ability to file FOIA requests – or to slow the processing of submitted FOIA requests to achieve the same effect – bears watching.

FOIA Sheds Light on Bleak Moral Aboard USS Shiloh Under Capt. Aycock

Command climate surveys aboard the USS Shiloh – which made news this summer when one sailor, who was presumed lost at sea but was later found in the ship’s engine room in an effort to hide from his the rest of the crew – that were obtained by a Navy Times FOIA request show a vessel where the sailors did “not trust the CO,” Capt. Adam M. Aycock. One comment, capturing the sense of dread aboard the vessel, called the Shiloh a “floating prison.” Taken together, the anonymous comments show an atmosphere of inefficiency and fear of Aycock, of whom many said “minor on-the-job mistakes often led to time in the brig, where they would be fed only bread and water.”

Navy officials were aware of issues with Aycock’s command after the first survey taken two months into his 26-month rotation aboard the Shiloh. Aycock was not fired, and recently completed his command at the end of August.

A B28RI nuclear bomb recovered eight days after the January 1966 midair collision between a B-52 bomber and KC-135 over Palomares, Spain.

Palomares Veterans Want Documents to Help Receive Disability Benefits

Airmen who participated in the 1966 Palomares clean-up – initiated after a B-52 bomber crashed into a KC-135 refueling tanker midair over the coastal village of Palomares, Spain, causing one of the nuclear weapons on board to go missing and coating the Spanish countryside in radioactive dust – have filed a FOIA lawsuit against the Defense Department for the release of information that would help them secure disability benefits related to the incident. Specifically, “The lawsuit, filed Tuesday in U.S. District Court in Connecticut, alleges that an untold number of the airmen involved in the Palomares cleanup have been denied disability benefits because the Defense Department has refused to turn over medical records and other data that would show the extent of their radiation exposure.”

Dr. William Burr, the curator of the National Security Archive’s Nuclear Vault, has an excellent blog on the Palomares and Thule clean-ups here.

FBI Works with Hollywood to Encourage Public Cooperation with Agency, Downplay Surveillance Work

Buzzfeed’s Ariane Lange and Jason Leopold have a very interesting long read on the FBI’s working relationship with Hollywood, and how the Bureau’s Investigative Publicity and Public Affairs Unit works with filmmakers to portray the agency in the most flattering light. The Bureau takes the job seriously, noting, “Most people form their opinion of the FBI from pop culture, not a two-minute news story.” Lange and Leopold drew from hundreds of pages of documents obtained in response to a FOIA lawsuit for their report. The reasons for the Bureau’s interest in working with Hollywood are made clear in one FBI slide, which shows that, “In any given week, Nielsen data indicates that FBI-themed dramas or documentaries reach 100,000,000+ people in the United States.” Another document makes clear the effort is a key part of the FBI’s mission and help to “encourage public cooperation with the FBI.”

According to the Bureau, “the ideal onscreen FBI character is approachable, polite, and not conducting surveillance.”

DOJ Appears to Investigate Admissions Practices at Harvard

A FOIA denial from the Justice Department’s Civil Rights Division sent that was to American Oversight and the Lawyers’ Committee for Civil Rights Under Law appears to confirm that the agency is investigating admissions practices at Harvard. The request, made for records concerning admissions investigations at Harvard and University of North Carolina at Chapel Hill, was submitted in August on the heels of “reports that DOJ would be launching an investigation related to allegations of discrimination against Asian-American students.” The DOJ said there were no documents concerning UNC Chapel Hill, leading requesters to believe there is an active investigation into Harvard.

Top-Secret CIA Memo Shows US Officials Thought Che Guevara’s Death A Crucial Victory

The National Security Archive’s Cuba Project director, Peter Kornbluh, recently authored a must-read article for The Nation Magazine on the 50th anniversary of Che Guevara’s death in Bolivia. Kornbluh highlights a top-secret CIA memo, prepared for LBJ five days after Che’s death, showing that US officials considered his execution a crucial victory—but they were mistaken in believing Che’s ideas could be buried along with his body. The memo “confirmed that Guevara had not died from ‘battle wounds’ during a clash with the Bolivian army, as the press had reported from Bolivia, but rather had been executed ‘at 1315 hours…with a burst of fire from an M-2 automatic rifle.’” The article can be read here.

TBT Pick – The Death of Che Guevara, Declassified

This week’s #TBT pick is the National Security Archive fifth posting – dating from 1997 – on the thirtieth anniversary of Che Guevara’s death. The posting features key CIA, State Department, and Pentagon documents on the killing, but the documents “provide only a partial picture of U.S. intelligence and military assessments, reports and extensive operations to track and ‘destroy’ Che Guevara’s guerrillas in Bolivia; thousands of CIA and military records on Guevara remain classified.”

A bonus TBT pick for those interested – a 2007 posting by Kornbluh on the auctioning off of Guevara’s hair, among other macabre memorabilia.)

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FOIA Details Pruitt’s Deep Industry Ties, Costly Security Detail: FRINFORMSUM 10/5/2017

October 5, 2017

FOIA Details Pruitt’s Deep Industry Ties, Costly Security Detail  

A FOIA request from American Oversight has won the “most detailed look” to date at Environmental Protection Agency (EPA) chief Scott Pruitt’s schedule. The 320-pages reveal the daily schedule for Pruitt’s first three months in office (February through May); included on the schedule is an ongoing string of meetings with executives and lobbyists from, among other companies, Shell, chemical maker Chemours Company, coal-burning utilities company Southern Company, coal-mining powerhouse Alliance Resource Partners, General Motors, and the Family Research Council (whose mission is to “advance faith, family and freedom in public policy and the culture from a Christian worldview”). The schedule also shows that Pruitt took several flights home to Oklahoma and made time for “long stretches of downtime,” but took “almost no meetings with environmental groups or consumer or public health advocates.”

The disclosure adds to previous FOIA releases by showing, for the first time, “a description of the topics discussed at each of the meetings, and a list of all the agency officials and corporate executives scheduled to attend.” The New York Times reports, “The newly released documents, for the first time, create a direct link between Mr. Pruitt’s meetings and actions that the industry wants him to take.”

Comparing Pruitt’s records with his predecessor under President Obama, Gina McCarthy, also shows that Pruitt spends considerably less time “meeting with E.P.A. professional staff and other federal government officials.”

FOIA requests to the EPA have also helped shed light on how much Pruitt’s protective detail costs; specifically, they show that Pruitt’s detail costs twice as much as his predecessors, and that “the EPA spent $832,735.40 on Pruitt’s protection detail for the three-month period.” The 24-hour security also requires three-times as many people as previous EPA heads, and has forced agency officials to rotate special agents who would normally investigate environmental crimes, something never before seen.

FOIA Request Seeks Info on Scrapped Equal Pay Rule

The National Women’s Law Center and the Lawyers’ Committee for Civil Rights Under Law are leading a coalition of more than 90 other organizations in a FOIA request to the Office of Management and Budget for information on “the Trump administration’s decision to halt an Obama-era initiative aimed at fighting employer discrimination against women and minorities.” The central question “is whether officials talked to equal-pay advocates or conducted meaningful research before shutting it down” and whether the legal standards to block the measure were met.

The request concerns a rule the Trump administration froze in August “that would have required companies to file data broken down by race, ethnicity and gender on what they pay workers” that was finalized last September and would have been implemented this year.

Overturned OLC Memo Says Presidents Can’t Hire Relatives

A Politico FOIA request won the release of recently-overturned Department of Justice Office of Legal Counsel memos issued to the Nixon, Carter, and Reagan administrations that concluded presidents “cannot appoint their relatives to the White House staff or presidential commissions, even to unpaid posts.” The OLC found that doing so would be illegal under a 1967 anti-nepotism law.

In January, at the request of the Trump administration, Justice Department attorney Daniel Koffsky “concluded that another law, passed in 1978, conferred broad authority on the president to appoint White House officials essentially overrides the earlier anti-nepotism measure.”

Josh Gerstein notes of the OLC release, “In a letter accompanying Monday’s release, OLC attorney Paul Colborn said most of the memos were covered by attorney-client privilege or executive privilege applicable to advice rendered to the president or his aides. Colborn said the Justice Department was releasing the opinions ‘as a matter of discretion.’”

ICE FOIA Library Down

MuckRock’s Emma Best recently pointed out that U.S. Customs and Immigration Enforcement took down its FOIA library on October 3 “for review.” As of writing this, the site, which houses, among other things, the agency’s FOIA reports that ICE is required to make public under the Electronic Freedom of Information Act Amendments of 1996, is still down.

It is hard to imagine that a legitimate reason why a review of ICE’s FOIA library would require it to be taken offline. The National Security Archive will be watching.

Treasury IG Says FOIA Needs Improvement

The Treasury Department’s Inspector General for Tax Administration has determined the IRS needs to improve its FOIA processing, and that the IRS “improperly withheld information 14.3 percent of the time—or approximately 1 in 7 FOIA requests.” The report can be read here.

The National Security Archive maintains a list of oversight reports, including IG and GAO reports on agencies compliance with the FOIA. The list of over 80 reports can be found here; if we are missing any, let us know and we will add them.

FBI Can Keep Secret How Much it Paid for iPhone Hack

A federal judge has sided with the government, ruling in a FOIA case brought by USA Today, The Associated Press, and Vice, that the FBI does not have to disclose how much it paid to unlock the iPhone used by one of the San Bernadino shooters that left 14 people dead, or who it paid to do it. (Former FBI director Comey hinted that it was more than $1.4 million.) U.S. District Court Judge Tanya Chutkan ruled that the identity of the firm is properly classified and constitutes intelligence sources or methods; she found that the amount constituted confidential law enforcement techniques or procedures.

The Archive’s Peter Kornbluh Inducted Into Order of Bernardo O’Higgins

The National Security Archive’s senior analyst, Peter Kornbluh, has been inducted into “the order of Bernardo O’Higgins.” Chile’s Ambassador Juan Gabriel Valdes presented the award, which the Chilean government gives to foreigners who have made a special contribution to Chilean society, during a Sunday ceremony at the Chilean Embassy.

In presenting the award, Ambassador Valdes recognized Kornbluh’s leadership role in decades of efforts to obtain the declassification of secret documents on the coup and the Pinochet regime. In his acceptance speech Kornbluh noted that the documents were invaluable to “speaking truth to power” because there “was no better way to reveal the truth than to reveal the words those in power spoke and wrote.”

Cyber Vault: DOD’s Information Operations Condition 

A 1999 Joint Chiefs of Staff memo – that was recently released to the National Security Archive in response to a Freedom of Information Act (FOIA) request – establishes a framework for responses to attacks on DoD computers and telecommunications. It is unclear if the INFOCON is current, but it is a valuable glimpse into the information warfare response at DoD regardless.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, October 4.

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FOIA Shows Immigration Judges Reassigned to Border Lack Work While Backlog Grows at Home: FRINFORMSUM 9/28/2017

September 28, 2017

FOIA Shows Immigration Judges Reassigned to Border Lack Work While Backlog Grows at Home

Guillermo Arias/AFP/Getty Images

A FOIA request to the Justice Department’s Executive Office of Immigration Review (EOIR) shows that a Trump administration initiative to speed up deportations by sending more than 100 of the country’s roughly 300 immigration judges on short-term missions to the U.S.-Mexico border has both increased the U.S. immigration court backlog and left many judges on these short-term assignments with little to do.

The FOIA request, filed by the National Immigration Justice Center (NIJC), won memos that detail the delay of “more than 20,000 home court hearings for their details to the border from March to May.” The immigration backlog has grown during the Trump administration from 540,000 cases to 600,000, although NIJC is careful to note that the Trump administration has not necessarily worsened the backlog.

Attorney General Jeff Sessions unveiled the DOJ’s judge relocation program in Nogales, Arizona in April, characterizing the relocations as a necessary surge. The program seeks to relocate judges handling “non-detained” immigration cases “to centers where they would only adjudicate cases of those detained crossing the U.S.-Mexico border, along with others who had been picked up by ICE for possible deportation.” Many judges found that, once re-located, there was not nearly enough work to fill their dockets, or the centers were not equipped to accommodate in-person hearings for a variety of reasons, including lack of internet and phone lines.

Politico reports, “Immigration judges and advocates acknowledge that the program has slightly improved since May—but many say that’s largely because the DOJ is sending fewer judges on temporary missions.”

FOIA Shows How No Fly Zone Was Established Over Standing Rock

A FOIA request to the Federal Aviation Administration won Motherboard “nearly 100 pages of emails between the FAA and federal, state, and local officials” highlighting the Morton County Police Departments efforts to quash protesters use of drones during last year’s Dakota Access pipeline protests by having the federal agency declare a temporary flight restriction (TFR) for the area. Footage taken by the drones – operated by Indigenous pilots and journalists – showed an “armored vehicle launching percussion grenades into the crowd; water cannons being fired at civilians; and continued pipeline construction after dark.” The FAA issued the TFR “ostensibly because law enforcement officers on the ground were telling the agency that drones presented a persistent threat to police helicopters and police on the ground. However, several of the events cited in emails to the FAA did not occur as described, and an Indigenous journalist who was arrested for flying drones at Standing Rock was later exonerated based on video evidence he presented in court.”

Judiciary Dems Want More on FOIA Release Concerning Trump Election Commission

Senate Judiciary Committee Democrats are again asking the Justice Department for information on a number of controversial topics the DOJ’s Civil Rights Division is involved in, including President Trump’s election fraud commission headed by Kansas State Secretary Kris Kobach (an interesting read on Kobach’s attempts to evade Kansas’ FOI law by claiming he is acting on the commission as a private citizen and not a state official can be found here). The Senators specifically seek more information from a DOJ FOIA response to the Campaign Legal Center that reveals “a February email that was forwarded to Attorney General Jeff Session from a conservative activist, who was later appointed to the commission, demanding that Democrats and even ‘mainstream’ Republicans not be selected for the panel.” The letter can be read here.

“…Congress did not intend the fees be erected as barriers to citizens access, it is quite clear that the Congress did intend that agencies recover [???] of their costs.”

OMB Still Hasn’t Updated 1987 FOIA Fee Guidance

The National Security Archive has submitted comments to the Fourth United States Open Government National Action Plan (NAP 4), urging the Office of Management and Budget to update its 1987 fee guidance, which is three decades outdated and missing a key word. The recommendation was initially made to OMB in April 2016 by the federal FOIA Advisory Committee, but OMB has yet to take any visible action, and FOIA fees remain a contentious and confusing issue for many FOIA requesters. The National Security Archive’s recommendations can be read here, and you can submit your own recommendation here.

U.S. Considered Using Nuclear Weapons Against N. Korea in 1969

The escalating bellicose rhetoric between the United States and North Korea has a number of observers revisiting both “The Long History of North Korea’s Declarations of War” and the 1969 North Korean shoot down of an American EC-121 spy plane flying off the coast of the peninsula. The attack killed all 31 crew members and forced President Richard Nixon, and his National Security Adviser Henry Kissinger, to make a difficult decision about how to respond to Pyongyang. The National Security Archive’s Korea Project director, Dr. Robert Wampler, told NPR in 2010 that declassified documents won through the FOIA showed that the Nixon administration struggled to identify an adequate response. Wampler said: “The U.S. did not have a very good menu of options when this happened, which sort of constrained them in their ability to pick and choose amongst something that would work, and also contain the situation… The military produced the options, ratcheting up the level of military force all the way to all-out war and to using nuclear weapons. But constantly you find the military saying, ‘But the risks probably still outweigh the potential gains.'” See “How Do You Solve a Problem Like Korea?” for more on the declassified documents.

National Security Agency Tracking of U.S. Citizens – “Questionable Practices” from 1960s & 1970s

The National Security Agency’s (NSA) own official history conflated two different constitutionally “questionable practices” involving surveillance of U.S. citizens, according to recent NSA declassifications recently published by the National Security Archive.

During the mid-1970s, the U.S. Senate’s Church Committee investigated a number of such “practices” by NSA, including the so-called Watch List program, which monitored the international communications of anti-Vietnam war activists and other alleged “subversives,” and the NSA’s creation of a voluminous filing system on prominent U.S. citizens. Ultimately the filing system, and corresponding indexes, surpassed 1,000,000 names, including 73,000 U.S. citizens.

The Agency’s history mistakenly folded in the NSA’s filing system on U.S. citizens into the Watch List, thus incorrectly stating that Senator Howard Baker and journalists Art Buchwald and Tom Wicker, among others, were on the Watch List. New documents that the NSA has released to the Archive through a mandatory declassification review appeal provide an important corrective to the Agency’s official history.

Oil on canvas by Commander E.J. Fitzgerald, January 1965. It depicts the engagement between USS Maddox (DD-731) and three North Vietnamese motor torpedo boats on 2 August 1964.

TBT Pick – The Gulf of Tonkin

This week’s #TBT pick is chosen with Ken Burns and Lynn Novick’s new documentary, The Vietnam War, in mind. This week’s pick is a 2004 posting by Archive Senior Analyst John Prados on the 40-year-anniversary of the Gulf of Tonkin and how flawed intelligence influenced the decision to escalate the war. Prados notes, “President Johnson and top U.S. officials chose to believe that North Vietnam had just attacked U.S. destroyers in the Gulf of Tonkin, even though the highly classified signals intercepts they cited to each other actually described a naval clash two days earlier (a battle prompted by covert U.S. attacks on North Vietnam), according to the declassified intercepts, Johnson White House tapes, and related documents.” The compilation of signals intercepts, which were only declassified in 2003, and audio files and transcripts of the key Tonkin Gulf conversations between President Johnson and Defense Secretary Robert McNamara, among other key resources, can be found on the National Security Archive’s website.

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Congress Surreptitiously Undermines FOIA, Private Property Threatened by Border Wall, and More: FRINFORMSUM 9/21/2017

September 21, 2017

Congress Surreptitiously Undermines FOIA

Congress is not subject to the Freedom of Information Act (FOIA) and members of congress are under no obligation to make their records public.

But congressional communications with the Executive Branch agencies they are tasked with overseeing are subject to FOIA. Justice Department Office of Information Policy guidance makes clear that “documents conveying advice from an agency to Congress for purposes of congressional decisionmaking are not ‘inter-agency’ records under Exemption 5 because Congress is not itself an ‘agency’ under the FOIA.”

Yet members of congress, just a year after passing bipartisan reforms to strengthen the Freedom of Information Act, appear to be trying to tell agencies to ignore DOJ guidance and existing case law.

The Columbia Journalism Review notes, “In April, for example, the Republican chair of the House Financial Services Committee, Rep. Jeb Hensarling, fired off letters to a dozen government agencies, warning that all correspondence with his committee should be exempt from FOIA. And in May, BuzzFeed reported that the House Ways and Means Committee had taken similar steps to shield its correspondence with the Centers for Medicare and Medicaid Services.”

The House of Representatives’ general counsel also recently argued in court that documents originating from the congress and released in response to a FOIA lawsuit should not have been released, saying that “releasing correspondence between Congress and federal agencies could ‘impair’ Congressional scrutiny.”

This is a giant step backward from a Congress that purports to support transparency. Nate Jones, the National Security Archive’s FOIA Project Director, says of Congress: “They’re trying to do this secretly, and they think the public’s not gonna care they’re attempting to eviscerate the Freedom of Information Act. We have to expose it, and make sure it doesn’t happen in a cigar-filled room but in a public forum, and that constituents know what their representatives are doing and tell them to stop doing it.”

In December 2014 Jones penned a blog on “What We Can Learn from the Death of a Unanimously-Supported FOIA Bill, and Janus-Faced Support for Open Government” that is a timely re-read.

Public Records Show How Much Private Property Threatened by Potential Border Wall

USA Today reporters undertook a massive effort to understand what it would take to build a border wall along the U.S.-Mexico border, one of President Trump’s signature campaign pledges. The international border is just under 2,000 miles, more than half of which is in Texas.

The debate in Texas is particularly complicated. The Rio Grande serves as the natural border between the U.S. and Mexico, meaning any structure would have to be built somewhat inland – and in Texas, this largely means on personal property. USA Today reporters took advantage of the state’s public records law to see just how complicated this issue might become. They found that a wall would run through 4,900 parcels of private property that abuts the border.

In 2006 the federal government brought more than 300 condemnation cases against private landowners in Texas to build the portions of the border fence that currently exist in the state. Nearly a third of those cases are still in litigation.

Reporters are also using FOIA to track down prototype designs of the wall that are slated to be built near San Diego. Several organizations, including American Oversight and the Center for Biological Diversity, have already sued the Department of Homeland Security under the FOIA for records related to the prototypes.

Trump Hides Mar-a-Lago Visitor Records

Yesterday the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW), filed a court motion asking “the Court issue an order requiring the government to show cause for its failure to comply with its court-ordered obligation to produce all responsive and non-exempt Mar-a-Lago records.”

The Department of Homeland Security last week released exactly two pages of Mar-a-Lago presidential visitor records in response to our FOIA lawsuit. The only document the government released concerns the visit of Japanese Prime Minister Shinzo Abe – this after telling Judge Failla and the plaintiffs that DHS would produce all the visitor records.

“The government misled the plaintiffs and the court,” commented the National Security Archive’s Director Tom Blanton. “I can only conclude that the Trump White House intervened and overrode career lawyers.”

FEMA Nominee Withdraws

The Project on Government Oversight has a good read on former Federal Emergency Management Agency (FEMA) official Daniel “Dan” Craig. Craig was tapped by President Trump to be the FEMA Deputy Administrator, but he – “likely facing many hurdles during his Senate confirmation hearing” – withdrew his nomination last week. POGO has been following Craig’s FEMA role for years, dating back to his awarding of sole source FEMA housing contracts after Hurricane Katrina that were “the subject of numerous reports of wasteful spending.”

POGO’s Scott Amey notes:

“As part of an investigation into those FEMA housing contracts, POGO submitted a Freedom of Information Act (FOIA) request to DHS in August 2006 (and a subsequent FOIA appeal in 2016) for any communications between Craig and the four companies that each received a $500 million non-competitive contract: Shaw GroupFluor Corp.Bechtel National Inc., and CH2MHill—all of which were companies where Craig had reportedly sought employment.

Finally, after 11 years, the DHS IG supplied the previously nonpublic report from 2007 to POGO. That report and its exhibits highlight Craig’s employment negotiations with two of the four sole source FEMA housing contractors—Fluor and the Shaw Group—the latter of which was a client of Craig’s post-FEMA employer.”

Michigan State and Reverse-FOIA Laswuits

Michigan State recently lost its second reverse-FOIA lawsuit against ESPN since 2015. A February 10 ESPN FOIA request specifically sought “all police reports containing allegations of sexual assault since Dec. 10, 2016, as well as records of arrests made between Feb. 6 and Feb. 9, according to court documents. The request came one day after MSU announced the suspensions of three MSU football players and a staff member associated with the team amid a sexual assault investigation.” MSU then sued ESPN and asked the court to decide whether some police reports could be withheld. The judge, Michigan Court of Claims Judge Cynthia Stephens found instead, “It does not take much imagination to think that the type of suit MSU wants to bring in the instant case could dissuade persons from making FOIA requests in the first instance out of fear of being sued by a public body. Such a chilling effect would be entirely incongruous with the statutory purposes of disclosure and open governance.”

ESPN won a separate lawsuit against MSU in 2015 for a 2014 FOIA  “for incident reports involving 301 student-athletes.” (The Lansing State Journal notes that MSU routinely uses the police investigation exemptions to deny documents that are not police products, including internal university investigations and emails.)

The Associated Press reports that reverse-FOIA lawsuits – while not an entirely new phenomenon – are becoming more popular with state and local governments “turning the tables on citizens who seek public records that might be embarrassing or legally sensitive. Instead of granting or denying their requests, a growing number of school districts, municipalities and state agencies have filed lawsuits against people making the requests — taxpayers, government watchdogs and journalists who must then pursue the records in court at their own expense.”

Another AP article examined a variety of bills introduced across the country intended to weaken state FOI laws. “Most of those proposals did not become law, but freedom-of-information advocates in some states said they were struck by the number of bills they believed would harm the public interest, and they are bracing for more fights next year.”

Cyber Vault: IRS Employees and Electronic Filing Fraud

1994 Government Accountability Office testimony before the Senate, which was recently taken down from GAO’s website, describes early efforts by the IRS to adapt to increased threats of electronic fraud and unauthorized access of taxpayer data by IRS employees. An interesting passage on “improper access to taxpayer data” focuses on IRS employees abusing taxpayer information, either by improperly monitoring their own fraudulent returns, issuing fraudulent returns, or “improperly browsing” other accounts. Audits also determined the punishments for such abuses were frequently too lenient.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 20. 

Leonard Perroots

TBT Pick – Two Men Saved the World from Nuclear War Two Months Apart in 1983

This week’s #TBT pick is chosen with the recent death of Stanislav Petrov, “the  man who saved the world” in September 1983 when he correctly suspected that Soviet satellite warnings of a U.S. nuclear attack were a false alarm and didn’t report them to superiors, in mind. As Nate Jones notes in his book, Able Archer 83:

“After a few terrifying minutes, the on-duty officer Colonel Stanislov Petrov reported, ‘this is a false alarm.’ Petrov came to this decision because he calculated that there was not yet enough corroborating radar on telescopic data, and because his ‘gut instinct’ told him that the United States would not launch a sudden nuclear attack against the Soviet Union.”

“’Gut instinct’ would play a role during Able Archer 83, this time on the American side.”

The man who saved the world less than two months later on the American side was Air Force lieutenant general and director of the Defense Intelligence Agency Leonard H. Perroots, then a young air force officer. In November 1993 Perroots made the “fortuitous, if ill-informed [] decision” … ‘out of instinct, not informed guidance’ to do ‘nothing in the face of evidence that parts of the Soviet armed forces were moving to an unusual level of alert” during a Soviet exercise conducted in response to Able Archer.

More on the 1983 War Scare can be found here.

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FOIA Request Helps Show What Steps NGA Taking to Reduce Overclassification: FRINFORMSUM 9/14/2017

September 14, 2017

National Geospatial-Intelligence Agency Fundamental Classification Guidance Review – Final Progress Report

FOIA Request Helps Show What Steps NGA Taking to Reduce Overclassification

The National Geospatial-Intelligence Agency (NGA) is going beyond the Executive Order on classification to improve the quality of its classification decisions and reduce overclassification. The Federation of American Scientists’ Steve Aftergood analyzes the changes in the agency’s new classification guide, including three types of “enhancement statements” that are likely “to promote a more thoughtful and limited approach to classifying national security information,” which were described in an agency report to the Information Security Oversight Office and obtained via FOIA. “NGA said that its use of enhancement statements to improve classification guides will soon be adopted throughout the Department of Defense, including all DoD intelligence agencies and military services, in a forthcoming revision of DoD manual 5200.45 on classification guidance.”

NSA Sets Up Surveillance Shop in Ethiopia, The Intercept Releases Trove of SIDtoday Articles  

The Intercept recently published a pair of interesting articles drawing on information from National Security Agency internal documents – nearly 300 SIDtoday articles – leaked by Edward Snowden.

The first draws on the leaked documents – as well as a document the National Security Archive obtained through the FOIA and published in 2009 – to chart how the agency built a surveillance network for Ethiopia, a key counterterrorism partner in East Africa that has been criticized for egregious human rights abuses and political violence. The NSA established its Deployed Signals Intelligence Operations Center, known as Lion’s Pride, in 2002 – but the roots go back to 1953, when the US “signed a 25-year agreement for a base at Kagnew Station in Asmara, Ethiopia, according to a declassified NSA report obtained by the nonprofit National Security Archive. Navy and Army communications facilities based there were joined by an NSA outpost just over a decade later.”

The second highlights stories from the 294 SIDtoday articles that are both substantive and strange, ranging from spies circumventing an attempt to mask their identities online by logging into their social media or doing a little online shopping, to efforts to spy on a liberated Iraq.

Mar-a-Lago guest Richard DeAgazio’s Facebook page featured a number of pictures of President Trump’s meeting with Japanese Prime Minister Shinzo Abe as news broke North Korea had fired a missile in the direction of Japan.

Mar-a-Lago Release Expected Tomorrow

The widely anticipated release of Mar-a-Lago visitor records for President Trump’s first six weeks in office has been delayed until noon tomorrow, Friday, September 15, at the request of the government.

Previously, federal district judge Katherine Polk Failla had ordered release of this first tranche of visitor logs for today, in response to the Freedom of Information Act lawsuit brought by the National Security Archive, the Knight First Amendment Institute at Columbia University, and Citizens for Responsibility and Ethics in Washington (Doyle et. al. v. DHS). But government lawyers told the plaintiffs last Friday that another week was needed for final review of the records.

Apparently, the Mar-a-Lago records do not include the level of detail that was routinely released by the Obama White House for over seven years on visitors, such as the staff person who authorized the visit, and location visited. Instead, the Mar-a-Lago records seem to consist of a series of e-mails between Secret Service components, sending names and identity information to be vetted. The release next Friday, September 15, will likely consist of a PDF containing these e-mails.

DC Glomars FOIA Request on Officer Seen Wearing Offensive Shirt

The District of Columbia is Glomaring a FOIA request for information on past complaints made against Officer Vincent Altiere, who was documented wearing a shirt bearing symbols “associated with the Ku Klux Klan and other racist groups,” saying any information – which they will not acknowledge the existence of – would be “a clearly unwanted invasion of personal privacy.” FOX 5 filed the FOIA request with the Metropolitan Police Department, and later appealed up to the mayor’s office; both entities denied the appeal.

Alleged Sessions Resignation Letter Won’t be Released

The Justice Department is Glomaring a FOIA request from the Huffington Post for a copy of Attorney General Jeff Sessions’ draft resignation letter allegedly written on May 5. Politico reported the resignation was penned after Trump repeatedly expressed frustration with Sessions’ recusal from the Russia investigation. The DOJ argued that “Even to acknowledge the existence of an alleged letter of resignation could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The DOJ also  refused to release the resignation letters of the U.S. attorneys who “left their posts at the request of the Trump administration” in March to the Burlington Free Press in response to a FOIA, saying they were “inherently personal.” Two former U.S. Attorneys – Tom Delahanty of Maine and Mike Cotter of Montana – later shared their resignation letters with the Burlington Free Press, saying there was nothing in the letters that should prevent their public release. Cotter’s March 10, 2017, letter stated: “Today at 12:45 p.m. MST I was informed that you Mr. President, ordered that I resign my position as United States Attorney for the District of Montana effective 5 p.m. MST today. Accordingly, I hereby submit my resignation.”

Kornbluh at the Secrets of State exhibit in Santiago.

Chile: Secrets of State

Forty-four years after the U.S. supported military coup, the Santiago Museum of Memory and Human Rights has inaugurated a special exhibit of declassified CIA, FBI, Defense Department and White House records on the U.S. role in Chile and the Pinochet dictatorship. The unusual exhibit, which officially opened to the public on September 5, is titled Secretos de Estado: La Historia Desclasificada de la Dictadura Chilena—Secrets of State: the Declassified History of the Chilean Dictatorship.

Curated by National Security Archive senior analyst Peter Kornbluh, the exhibit consists of 45 formerly classified documents dated between 1970 when Richard Nixon ordered to the CIA to instigate a coup in Chile, and October 1988 when General Augusto Pinochet sought to orchestrate a second coup after losing a plebiscite to stay in power.

The exhibit, mounted in the museum’s “Galeria de la Memoria,” will run until March, 2018.

Cyber Vault: First Responders Targeted

Cyber criminals, including those supporting violent extremists, appear engaged in an ongoing effort to single out first responders, hoping to impede their ability to react to disasters. Cyber Threats to First Responders are a Persistent Concern, compiled by the New York State Professional Fire Fighters Association in conjunction with the National Counterterrorism Center, DHS, and the FBI, cites recent incidents in DC and 12 states, and provides a list of possible countermeasures.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 13.

TBT Pick: “Godfather” of Colombian Army Intelligence Acquitted in Palace of Justice Case

This week’s #TBT pick is a 2011 posting on the Palace of Justice trial of Colombian army general Iván Ramírez Quintero, who “actively” collaborated with paramilitary death squads responsible for dozens of massacres, according to FOIA-released records published by the Archive. Ramírez, however, was exonerated for his role in the torture and disappearance of Irma Franco, one of several people detained by the army during the November 1985 Palace of Justice disaster. Archivist Michael Evans has the whole story and declassified documents here.

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Deadline Looms for Govt to Release Mar-a-Lago Presidential Visitor Records in Response to FOIA Suit: FRINFORMSUM 9/7/2017

September 7, 2017

Mar-a-Lago Diplomacy

Tomorrow Deadline for Mar-a-Lago Records Release

Tomorrow is the deadline for the Department of Homeland Security to release all responsive, non-exempt records of presidential visits to Mar-a-Lago in response to a FOIA lawsuit brought by the National Security Archive, together with the Knight First Amendment Institute at Columbia University and the Citizens for Responsibility and Ethics in Washington (CREW).

It remains unclear how robust the visitor records the National Security Archive receives will be, but what is evident is that the FOIA lawsuit is forcing a greater degree of transparency than would have been possible without litigation.

The government has until the end of September to file declarations concerning the White House visitor logs. For comprehensive coverage of our suit, Doyle v. DHS, and the history behind the request, read:

Golf Handicap Records Help Track Lobbyists, Contractors Playing at Trump Golf Courses

A USA Today investigative team combed through social media posts, news stories, and a public website popular with golfers to track their handicaps and check other players’ scores, and found “Dozens of lobbyists, contractors and others who make their living influencing the government pay President Trump’s companies for membership in his private golf clubs, a status that can put them in close contact with the president.” Among them are “top executives of defense contractors, a lobbyist for the South Korean government, a lawyer helping Saudi Arabia fight claims over the Sept. 11 terrorist attacks and the leader of a pesticide trade group that sought successfully to persuade the Trump administration not to ban an insecticide government scientists linked to health risks.” The potential access for the super wealthy (a membership is roughly $100,000 a year) raises a host of ethical questions about whether it is appropriate for the president to be personally enriched by those trying to shape federal policy.

FOIA Sheds Light on LGBT Data Tussle

During the Obama administration the Justice Department, Department of Housing and Urban Development, Environmental Protection Agency, and Centers for Medicare and Medicaid Services all requested that the Census Bureau include questions about sexual orientation and gender identity in the next American Community Survey. As NPR reports, “Many LGBT rights groups say accurate national data about lesbian, gay, bisexual and transgender people are critical in making sure their needs are met.”

The Justice Department, however, rescinded its request under the Trump administration “because such a request requires thorough analysis and careful consideration,” and in March the bureau concluded there was “no federal data need” to collect the information. Former Census Bureau director John Thompson told NPR that had that not happened, the bureau might have started asking sexual orientation and gender identity questions.

NPR received a number of documents on the fight over LGBT questions through the FOIA, including a November 4, 2016, Justice Department letter citing the “legal authority supporting the necessity” for collecting the data, and a June 30, 2016, letter from HUD arguing that “Valid, reliable, and nationally representative data on sexual orientation and gender identity are essential to HUD fulfilling its mission” – particularly enforcement of the Equal Access to Housing rule and the Fair Housing Act.

18F Publishes Recommendations for National FOIA Portal

18F, the General Services Administration’s digital wizards, recently published their recommendations on the government-wide FOIA online request portal mandated by the FOIA Improvement Act of 2016. Compiled after extensive research and dozens of interviews (full disclosure: I was interviewed by 18F during this process), the tech team – solicited by the Justice Department, which received $1.3 million to build the website – found “that while a request platform alone cannot address the most significant challenges with FOIA, a single collection point for requests represents a unique opportunity to make significant improvements to the FOIA requesting system overall.”

The Sunlight Foundation’s Alex Howard summarizes 18F’s work-to-date and potential as follows:

Many of the problems with FOIA cannot be solved with better software. The public still waiting to hear anything from the Department of Justice regarding the “release-to-one, release-to-all policy” that it took public comment on last year, and the antagonism towards transparency by the Trump administration has been well documented.

That said, this is still good news in a historic moment in DC when open government is under threat. We applaud the General Services Administration for their work to date and look forward to seeing the beta go live, but this project is far from over. What happens next will depend in part on funding and political will.

The National Security Archive echoes these sentiments.

Soviet Navy Declassified

The CIA has declassified and published some 82 documents, totaling 2,000 pages, on the Soviet Navy during the Cold War. The release coincides with a joint event hosted with the National Museum of the U.S. Navy and the Naval Historical Foundation. The CIA press release notes, “The documents range from translations of clandestinely-obtained articles from the Soviet military journal, Military Thought, to high-level National Intelligence Estimates.”

The collection is a third in a series of CIA releases on Warsaw Pact forces. The earlier releases are:

How to Counter Botnets?

An unclassified Defense Advanced Research Projects Agency (DARPA) presentation dated July 31, 2017, indicates that DARPA is pursuing methods for countering botnets-based operations. Specifics from the presentation, Harnessing Autonomy for Countering Cyberadversary Systems (HACCS), include the program’s structure and schedule, classification and clearance requirements, and meeting and reporting requirements.

The document is one of 12 new additions posted in the National Security Archive’s Cyber Vault on Wednesday, September 6.

TBT Pick – Stopping Korea from Going Nuclear, Parts 1 and 2

This week’s #TBT pick is a pair of postings on South Korea’s nuclear ambitions. The first posting documents how the Ford administration accumulated evidence – including a secret report to Secretary of State Henry Kissinger relaying that President Park Chung-hee reportedly instructed South Korean scientists to build nuclear bombs by 1977 – that raised worries about proliferation and regional instability. The second charts how the Ford administration had to use a combination of approaches to keep South Korea’s Park dictatorship from going forward with a suspected nuclear weapons program in the mid-1970s.

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