Exemption 5 FOIA Reform Would Not Have Chilling Effect on Agency Deliberations, MDR Fees Should Be Comparable to FOIA Fees, and More: FRINFORMSUM 4/28/2016
A recent Congressional Research Service (CRS) report provides a helpful side-by-side comparison of the FOIA reform bills currently in the House and the Senate (the National Security Archive’s analysis of both bills can be found here, here, and here). In comparing the bills’ treatment of Exemption 5, the exemption that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public, and is applied with such frequency that it is often called the “withhold it because you want to” exemption, the report notes that both bills would prohibit applying the exemption to documents 25 years or older.
However, the report misses the mark on the House language on Exemption 5, reiterating a common – and inaccurate – argument, that House language placing additional limits on Exemption 5 would have a chilling effect on agency deliberations, and fails to identify that the language authored by Rep. Jason Chaffetz (R-Utah), Chairman of the House Oversight and Government Reform Committee, and his colleagues, would ensure that “records that embody the working law, effective policy, or the final decision of the agency” (such as Office of Legal Council memos) cannot be withheld.
While the House’s language on Exemption 5 is stronger than the Senate’s, at this late point in the legislative session FOIA reform’s best chance for passage is for the House to adopt the Senate’s bill and ensure that necessary fixes to Exemption 5 are codified. This would still prevent agencies from making the most spurious of Exemption 5 claims in the future, like the DOE’s use of Exemption 5 to withhold a 1978 letter from former Los Alamos National Lab director Harold Agnew to the White House’s Office of Science and Technology Policy director Frank Press on the Comprehensive Test Ban Treaty (CTBT) in full – even though the document is segregable and contains information that is already public knowledge thanks to previous State Department publications on the same subject – on the grounds that releasing any part of the document could “confuse the public about the Government’s later policy decisions.”
It would also stop the CIA and the Department of Justice from using Exemption 5 to successfully conceal a volume of the CIA history on the Bay of Pigs, saying its release could “confuse the public”. Amazingly enough they did so in Court when the Archive sued over the ridiculous secrecy – and they won. And then won again after the National Security Archive’s appeal was denied in the DC Court of Appeals. In its ruling the Court invited Congress to place a time limit on the exemption, and Congress is now taking up the challenge in a meaningful, bipartisan, and bicameral way. The National Security Archive would commit, of course, to working with Rep. Chaffetz and others to continue to strengthen FOIA and B5 reform in the future, should the House adopt the Senate bill this session.
The Office of the Director of National Intelligence, in response to comments submitted by the National Security Archive, OpenTheGovernment.org, and others, has issued a revised rule amending excessive fee provisions that would have priced out Mandatory Declassification Review requesters. ODNI’s initial plan could have charged requesters up to $72 per hour to review MDR requests, even if no information was found or if all of the information that was found must be withheld, and was out of step both with the Obama administration’s National Action Plan (NAP) transparency commitments and other agencies’ reasonable fee structures. As OTG notes, “ODNI agreed with the recommendations it received, and indicated that the proposal would be replaced with fee provisions comparable to those in ODNI’s FOIA program.”
In response to ODNI’s misstep – and an earlier, identical misstep by the CIA – a mark-up to the Intelligence Authorization Act of 2016 includes language codifying that agencies’ MDR fees must be comparable to their FOIA fees, and that agencies may waive or reduce any MDR processing fees, just as with FOIA.
The Office of Government Information Services has released Part One of its examination of agencies’ use of “still interested” letters, finding, among other things, that “using still interested letters to reduce a backlog is an ineffective strategy.” The full report, available here, analyzes data from FOIA Annual Reports across 17 fiscal years (FY 1998 – FY 2014) to draw lessons from the controversial letters – which agencies send to requesters, often after years of delay, to inquire if the requester still wants their request processed. They frequently state that if the agency fails to receive a response from the requester, the agency will summarily close the request. OGIS importantly notes that the data gathered from the FOIA Annual Reports “does not capture requester frustration about the use of still interested letters. Ironically, the requesters most likely to be annoyed by correspondence of this type—those who wish for their requests to remain open, and respond by the agency’s deadline—will never show up in data about the number of requests closed using still interested letters.”
This report does not, however, examine the legality of this practice, as nothing in the FOIA itself 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.” Aside from settling possible fee disagreements, FOIA does not require any further action on a requester’s part after a request has been submitted.
The CIA is playing a game of hide-and-seek with documents on famed CIA mole-hunter James Angleton that were – until recently – publicly available at Georgetown University’s Lauinger Library. In a recent article for The Intercept, Jefferson Morley, who is currently writing a biography on Angleton and his mole hunt that destroyed the careers of dozens of innocent people, detailed how the CIA caught wind of his intentions to view the library’s material, recalled the decades-old documents from the library to review them for “security material,” and then proceeded to claim that the records couldn’t be released under FOIA because the library is still in the process of sending the documents. Georgetown spokesperson John Kenchelian agreed with the CIA, saying that “the CIA has not taken possession of the documents, they are still in Georgetown’s possession,” going on to say “The CIA will be reviewing the documents at a yet to be determined time and date for potentially classified material.”
Records released thanks to a FOIA request show that FBI officials instructed agents not to reveal tech secrets to federal prosecutors out of fear the lawyers might one day work as defense attorneys, offering a timely look at the lengths to which the FBI goes to guard its technology. The revelation raises red flags for privacy advocates, who question the extent to which judicial oversight can be effective in light of such practices, and Justice Department lawyers, who are consulted extensively in sensitive cases. Former US Attorney Rachel Paulose says, “The fact that somebody may at some point go over to the other side is not a legitimate basis to withhold relevant information.”
The Defense Department recently issued a directive instructing agencies to pay equal attention to declassifying national security information as they do to classification efforts. Steve Aftergood notes that the directive is commendable, if not aspirational, saying that it is unclear what the DOD means by equal attention, arguing that it does not mean equal resources or personnel. Yet Aftergood concludes that “in a rules-based bureaucracy like the Pentagon, a directive from the Under Secretary of Defense has some intrinsic weight and cannot be entirely dismissed.”
President John F. Kennedy worried that Israel’s nuclear program was a potentially serious proliferation risk and insisted that Israel permit periodic inspections to mitigate the danger, according to declassified documents published recently by the National Security Archive, Nuclear Proliferation International History Project, and the James Martin Center for Nonproliferation Studies. Kennedy pressured the government of Prime Minister David Ben-Gurion to prevent a military nuclear program, particularly after stage-managed tours of the Dimona facility for U.S. government scientists in 1961 and 1962 raised suspicions within U.S. intelligence that Israel might be concealing its underlying nuclear aims. Kennedy’s long-run objective, documents show, was to broaden and institutionalize inspections of Dimona by the International Atomic Energy Agency.
This week’s #tbt pick is chosen with this week’s 30th anniversary of the Chernobyl disaster in mind, and is a collection of original Russian-language sources from the Russian Archives on the disaster that are newly available on the National Security Archive’s Russian page. Among the documents are: Yuri Andropov’s report from 1979 on deficiencies in the original construction of the Chernobyl power station; the initial 1986 report about the explosion, which stated that there was no need to evacuate nearby residents; Central Committee decisions on emergency measures and containing the radioactive contamination; Shevardnadze’s review of foreign reactions to the accident; and excerpts from the Politburo discussions related to Chernobyl.
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22 Years Later, US Still Classifying “Bombshell” Plan to Pull Peacekeepers Out Before Rwanda Genocide
The tinderbox of Rwanda’s ethnic tensions ignited in April 1994 and mass violence engulfed the country in one of the swiftest campaigns of genocide in history. The National Security Archive’s Genocide Documentation Project’s collection of declassified documents on Rwanda numbers in the thousands, and includes an April 15, 1994, State Department cable on the U.S.’s decision to pull United Nations forces out of Rwanda; a fact still withheld by State Department redactors even though the information has been released by the Czech Republic, New Zealand, United Kingdom, and the United Nations and published on the Archive’s website.
On April 20, 1994, the Advisor on African Affairs to French President Mitterrand, Bruno Delaye, stated, “There is nothing to say.” According to UNHCR, 100,000 Rwandans would be dead by the end of April and 800,000 would be displaced. The following day, the International Committee of the Red Cross (ICRC) reported that the fighting that started in central Rwanda at the beginning of the month had spread to the rest of the country. Tens of thousands were dead and hundreds of thousands had fled their homes.
However, a plan by the U.S. and the UN to reduce and eventually withdraw the United Nations Assistance Mission for Rwanda (UNAMIR) was already well underway. On April 15, 1994, the U.S. Mission to the UN dropped a “bombshell” on the Security Council, arguing for the complete termination of UNAMIR and the pullout of all peacekeepers in Rwanda.
Reviewers redacted the historic “bombshell” from a State Department cable, however, even though the fact that the U.S. called for the withdrawal of UNAMIR troops, was previously released to the National Security Archive by the governments of the Czech Republic, New Zealand, and the United Kingdom, and the UN’s Kofi Annan in response to FOIA requests. The information had even been published on the Archive’s website and in the critical oral history conference briefing book, “International Decision-Making in the Age of Genocide: Rwanda 1990-1994,” in June 2014.
On April 21, 1994, the same day of the ICRC report, Susan Rice, then the deputy to Richard Clarke of the National Security Council, attended a meeting of the Peacekeeping Core Group (PCG). Her handwritten notes stated, “[Maurice] Barril wants to withdraw 900 tonight,” followed by concerns about setting a “bad precedent, potentially.”1 She then begs the question, “How do we protect people if forces are withdrawn?”
Rice’s prescient notes, among hundreds of pages of other pertinent documents, were declassified in 2015 after the Archive sent a Mandatory Declassification Review (MDR) request to the Clinton Presidential Library, and can be found in the Clinton Digital Library.
The same day of the PCG meeting, the UN Security Council adopted Resolution 912, which cut the size of UNAMIR forces down to 270 people. An April 26, 1994, declassified State Department cable described the policy as, “retain[ing] a small group, including the Force Commander and SRSG, with necessary staff, an infantry company to provide security, and some military observers.”
An April 25, 1994, confidential National Security Council memo from Donald Steinberg, the Council’s Senior Director for African Affairs, reads, “Stories throughout the weekend seem to suggest that we are sitting on our hands while the blood-letting in Rwanda rages. It is true that our capacity to end the killing is painfully limited, but we are undertaking a series of measures.”22 years later, it is clear that the international community’s policies in Rwanda were a catastrophe, with an estimated 800,000 to 1 million slaughtered over the course of 100 days. The National Security Archive’s research found that these very decisions contributed to the failure to protect millions of Rwandan civilians from death, rape, and displacement.
In a September 2001 interview, Susan Rice said:
There was such a huge disconnect between the logic of each of the decisions we took along the way during the genocide and the moral consequences of the decisions taken collectively. I swore to myself that if I ever faced such a crisis again, I would come down on the side of dramatic action, going down in flames if that was required.
The Genocide Project’s conference at The Hague in June 2014, in partnership with the United States Holocaust Memorial Museum, assessed these policy decisions with key actors and added to the historical record of the Rwandan Genocide, a record that should not, 22 years later, continue to be hampered by needless secrecy of historically important documents like the “bombshell” cable.
The Genocide Documentation Project, launched in January 2013 in partnership with the United States Holocaust Memorial Museum, explores the failures of the international community to prevent or effectively respond to past cases of genocide. Through detailed case studies, the project’s research seeks to inform international policies regarding the prevention of and response to genocide and mass atrocity. By examining the role of the international community in past incidents of genocidal violence, these case studies help shape the views of a new generation of policymakers both within the United States and around the world.
1. Major General Maurice Barril was the military advisor to UN Secretary General Boutros Boutros-Ghali and in charge of the Military Division of the Department of Peacekeeping Operations during the genocide.
Vote to Update OMB’s Three-Decade-Old FOIA Fee Guidelines, “28 Pages” Not the Only 9/11 Documents Still Senselessly Withheld, and More: FRINFORMSUM 4/21/2016
The FOIA Federal Advisory Committee voted unanimously to update the Office of Management and Budget’s three-decade-old FOIA fee guidelines during its most recent meeting on Tuesday, April 19. Toby McIntosh of FreedomInfo.org notes that the unanimous vote was achieved only after an acceptable compromise on language was agreed upon “after some members, mainly from government agencies, voiced last-minute concerns about language” on when agencies have discretion to not charge FOIA fees. The last-minute changes cropped up, briefly calling into question whether the vote to bring the fee guidance into the 21st century would be successful, even though the agreed upon changes could have very likely been communicated and agreed upon before the meeting. Still, the live amendment process added a flash of drama, and fortunately unanimous consensus recommendations were reached. The final recommendations are available here.
The advisory committee also received a report from the Subcommittee on FOIA Oversight and Accountability that concludes that the government’s FOIA oversight methods “are not sufficient.” The Archive’s Nate Jones, a member of the Oversight Subcommittee, told the Advisory Committee, “Reporting is important but it can’t be the be all and end all of FOIA compliance.” Jones argued that a FOIA watchdog – with the independence and authority to enforce compliance – is needed to compel lagging agencies to improve their FOIA performance.
George Will recently added his voice to the chorus calling for the declassification of the 28 pages that detail Saudi involvement in the 9/11 attacks that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. Will calls on President Obama to release the 28 pages upon return from his trip to Saudi Arabia in a recent op-ed, noting the release “would be mild punishment for complicity in 2,977 murders.” Will doesn’t stop there; he argues that Obama should “further curtail senseless secrecy by countermanding the CIA’s refusal to release its official history of the 1961 Bay of Pigs debacle.”
The Archive couldn’t agree more. The National Security Archive filed a FOIA lawsuit for the full release of the CIA’s history of the invasion, only to have the D.C. Circuit uphold the CIA’s cover-up by ruling that a 30-year-old volume of the CIA’s draft “official history” could be withheld from the public under the “deliberative process” privilege. This obfuscation was upheld even though four of the five volumes of the invasion have previously been released with no harm either to national security or any government deliberation. Both the House and Senate FOIA bills would fix this problem by adding a 25-year sunset to the “deliberative process” exemption, but both bills appear stalled despite unanimous support.
The infamous “28 pages” are not the only documents related to 9/11 still being senselessly withheld. The DOD is withholding nearly 60 pages of Donald Rumsfeld’s documents on Osama bin Laden, Al Qaeda, and the Taliban from 2001 — including the nine months preceding the attack, leaving it unclear what Rumsfeld’s office did or did not know in the lead-up to the tragedy. The Archive requested the records a decade ago, and only recently received the heavily redacted response; all withholdings were pursuant to the national security exemption and FOIA’s “withhold it because you want to” exemption 5. Exemption 5 is the “deliberative process” exemption and potentially covers any “inter-agency or intra-agency memorandums or letters” and, according to DOJ guidance, “hold[s] the greatest potential for discretionary disclosures.” The Archive is of course appealing this misapplication of the b5 exemption, increasingly used to prevent embarrassment or hide errors and failures –, and will keep fighting for the release of these historically significant documents.
Senators Chuck Grassley (R-Iowa)and Patrick Leahy (D-Vt.) recently scored a FOIA win during the reauthorization of the Commodity Futures Trading Commission (CFTC), preventing “the CFTC’s FOIA exemptions from going beyond what is necessary.” The senators introduced an amendment, which was accepted, that ensured that data compiled by the commission remains subject to FOIA. Grassley said of the amendment’s success that “FOIA already strikes a proper balance between the public’s right to know and the government’s need to protect certain information. But special interests wanted to give the CFTC additional, nearly carte blanche authority to fully exempt certain information from public accountability through FOIA. That was unacceptable to Senator Leahy and me.”
FOIA records obtained the nonpartisan advocacy group, Protect Our Defenders, show that top brass at the Pentagon deliberately misled Congress on the military’s handling of sexual assault cases to blunt support for a Senate bill that would transfer certain authorities to independent prosecutors. Military officials used “vague or inaccurate language” to portray the bill –which would grant independent prosecutors the authority to determine whether or not charges should be brought, rather than unit commands – as unnecessary, or even detrimental. To do so, officials cherry-picked 93 cases – later disproved – of civilian prosecutors refusing to handle certain sexual assault cases to claim that less sexual assault cases would be brought to trial. Protect Our Defender is calling for additional Congressional hearings to address “this latest deception,” and the group’s full analysis of the documents is available here.
The Bureau of Prisons (BOP) told the ACLU that it had no records in response to the ACLU’s FOIA request for records on BOG officials’ visit to a CIA detention site in Afghanistan in 2002. The BOP made this outrageous claim even though “A U.S. Senate report revealed the Bureau of Prisons said the CIA site was ‘not inhumane,’ adding that the visiting team was ‘wowed’ by the level of sensory deprivation the CIA achieved against suspects.” The ACLU is filing a FOIA lawsuit to compel the release of documents that, in all likelihood, do exist.
Microsoft is suing the government over the nondisclosure provisions contained in national security letters – letters which are overwhelmingly sent by the FBI and demand business records from a wide array of organizations for national security investigations. The gag orders are often indefinite, meaning companies like Microsoft “are forever barred from speaking, and our customers are forever barred from hearing that the government has accessed their email or other content.” The National Security Archive’s review of these powerful –and largely unchecked– letters, helps contextualize both the FBI’s concerns altering one of its key investigative tools, and the serious civil rights concerns that tool elicits.
Sean Gallagher highlighted a fascinating document from the Archive’s “Cyber Vault” in a recent Ars Technica posting. The document is a 1970 Defense Science Board Task Force on Computer Security Security Controls for Computer Systems Report, and attempts to examine “the risks associated with the rapid growth of ‘multi-access, resource-sharing computer systems,’” and offers a list of conclusions and recommendations that Gallagher says many have failed to heed. Gallagher notes the document is “a classic text of computer security,” going on to say that “as much as technology has changed in the 46 years that have passed, the [document] would still hold up pretty well today with a few notable edits.”
This week’s #tbt pick is chosen with news that the Mexican army is withholding “key evidence from international investigators in the case of 43 trainee teachers abducted and apparently massacred in late 2014, hampering their efforts to reach the truth,” in mind. This week’s #tbt pick is a 2015 Archive posting on the prelude to the massacre, which showed – thanks to a 2011 declassified cable from the US Embassy in Mexico obtained by the Archive – that “U.S. Ambassador to Mexico Earl Anthony Wayne said that ‘evidence of heavy-handed police tactics’ was ‘strong and disconcerting’ after a 2011 clash with student protesters from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded.”
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A version of this article originally appeared on FreedomInfo.org.
By Toby McIntosh
An advisory committee on the US Freedom of Information Act has recommended that government agencies should be given more flexibility to waive fees.
Ending two years of work, the advisory committee (which will be reconstituted) made this suggestion and others as part of a call for the Office of Management and Budget to rewrite decades-old guidance to agencies on interpreting FOIA.
On fees, the subcommittee worked out compromise language after some members, mainly from government agencies, resisted language supportive of total agency discretion to grant not to charge fees. Such flexibility would foster confusion, favoritism and litigation, said speakers, including Melanie Pustay, Director of the Office of Information Policy of the United States Department of Justice.
Supporters of more leeway on fee decisions countered that many agencies already exercise such discretion, that confusion exists about waivers, fee categories, and administrative discretion not to charge fees and that litigation over waivers is costly. One suggested abolishing fees altogether. The subcommittee report documents that fees contribute only about one percent of the cost of administering the FOIA.
The recommendation was moderated to achieve a unanimous recommendation. It says that the Archivist (to whom the advisory committee reports) should urge OMB to issue new FOIA guidance that would “address how agencies may use their administrative discretion (rather than a formal waiver) to decide not to charge FOIA fees when the interests of the United States would be served and is clearly articulated.”
Oversight Report Critical
The committee also received a subcommittee report concluding that government’s oversight methods for of the FOIA process “are not sufficient.”
The subcommittee collected previously released agency reports on compliance with the FOIA, an “phenomenal” effort that generated praise for Nate Jones (an advisory committee member) and Lauren Harper, both of the National Security Archive (the Washington-based nongovernmental organization that also publishes FreedomInfo.org.)
The agency reports indicate that the oversight challenges “have not been effectively addressed in a systematic fashion, but rather with a ‘one agency at a time’ approach,” the subcommittee concluded. “While challenges of resources, jurisdiction, and management make it difficult to propose specific solutions to address the issues documented in these reports, it is clear that improvements are necessary regarding the oversight and accountability of FOIA administration.”
Jones said, “Reporting is important but it can’t be the be all and end all of FOIA compliance.” At the top performing agencies there is strong commitment from top leaders, he said. He advocated having government “FOIA watchdogs” as monitors.
The subcommittee held a lively discussion of an academic study whose author presented her conclusion that the government is subsidizing private sector FOIA requesters.
Commercial requesters account for more than 80 percent of requests at some agencies, said Margaret Kwoka, who documented her findings in “FOIA Inc.,” the final version of which has just appeared in the Duke Law Journal.
The University of Denver law professor said “it is entirely likely that some fraction of commercial requests do advocate democratic goals” but also said that some requesters are seeking information about competitors, others are conducting due diligence about potential environmental problems with real estate deals, and some are building proprietary databases whose use can be expensive.
FOIA fees cover almost none of the costs, she said, creating “an unintended corporate subsidy.” The Food and Drug Administration has a $33 million FOI budget and about three-fourths of the FOIA traffic comes from commercial requesters, she said. Government could save money lower FOIA requests times by proactively releasing the most-requested material and also, she said, suggested some incentives for agencies and higher fees for commercial requesters.
Some government officials on the advisory panel cited several potential problems with wholesale disclosure, including how to deal with situations when the submitter of information must be notified of its release. Several committee members discounted this and suggested minimizing the step by improving the design of government information gathering.
Larry Gottesman, a committee member from the Environmental Protection Agency, said his agency expects to reduce the number of FOIA requests by about 40 percent with the coming introduction of “My Property” which will enable users to see if a property has environmental problems and to receive an official “Certificate of Conformity.”
Also frequently requested are FDA Form 483 inspection reports on drug manufacturing facilities. An FDA official in the audience told the committee that the agency gets requests for about 25 percent of the 10,000-12,000 reports but that posting them all would not be the best use of resources. She said the agency had proactively issued some reports in anticipation of public interest, such as those about pharmaceutical compounding firms.
The following report, by the FOIA Advisory Committee’s Oversight and Accountability Subcommittee, was originally posted on the Office of Government Information Services website.
As part of the Federal Freedom of Information Act Advisory Committee’s charter “to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures,” the FOIA Oversight and Accountability Subcommittee has collected previously released reports on agencies’ compliance with the FOIA. The focus of this review was to learn from past successes and challenges to forge a more effective collaboration between federal agencies and the FOIA requester community.
The FOIA Oversight and Accountability Subcommittee compiled more than 80 previously released Inspector General, Government Accountability Office, and other reports on agencies’ compliance with the FOIA. Collectively, there were positive findings in the reports, but the reports show there are persistent challenges in implementing FOIA across the federal government. Additionally, the reports indicate that these challenges have not been effectively addressed in a systematic fashion, but rather with a “one agency at a time” approach. While challenges of resources, jurisdiction, and management make it difficult to propose specific solutions to address the issues documented in these reports, it is clear that improvements are necessary regarding the oversight and accountability of FOIA administration.
The positives gleaned from the reports include the following:
Good Communication With Requesters
In its review of the National Archives and Record Administration’s (NARA) FOIA program, the Office of Government Information Services (OGIS) found that NARA provided good customer service regarding FOIA matters. Namely, “Special Access and FOIA employees generally provide great customer service. Each day a Special Access and FOIA employee is on-call at the Archives facility in College Park, MD, to assist researchers who visit the facility. The on-call employee is available to provide on-demand screening allowing in many, but not all, cases records that were flagged as possibly restricted when they were accessioned by NARA to be released without a FOIA request. The on-call employee also is available to help requesters with filling out standard FOIA request forms and to answer other FOIA-related questions.” In addition to this finding, NARA consistently provides contact information to FOIA requesters in all of its written communications that include both a phone number and an email.
Using Technology to Improve the FOIA Process
A March 9, 2016, Office of Government Information Services (OGIS) compliance report found that Customs and Border Protection (CBP) adopted FOIAonline to help manage its FOIA requests. OGIS recommends, however, that CBP must “regularly post released records into FOIAonline’s records repository,” going on to note that “CBP’s website does not help requesters understand the FOIA process or how to use FOIAonline.”
Improved Management Practices
The March 9, 2016 OGIS report found that CBP corrected errors in its FOIA program and improved management practices. The improvement steps taken by CBP included hiring additional FOIA staff and shifting resources to address critical issues when needed for “triage”. Additionally, the majority of CBP’s FOIA-related litigation between FY 2009 and 2015 cited “CBP’s lack of response and/or delay as a reason for suing,” costing the agency $1.2 million. To help address this issue, CBP FOIA managers requested 20 new positions for the FOIA branch; a good step. However, FOIA managers learned in January 2016 that funding was not approved for those positions. This decision will likely hamper CBP’s efforts to improve processing times and reduce costly litigation.
Taking Advice from OGIS
In September 2015, OGIS posted its FOIA compliance assessment of the Coast Guard’s FOIA program. OGIS found that, among other things, the Coast Guard needed to improve its communication with requesters and harness the power of technology. The Coast Guard responded to the OGIS assessment by updating its FOIA Manual to improve processing, researching FOIA software systems “that could help [the Coast Guard] become more efficient and streamline [its] FOIA process,” and overhauled its FOIA webpage to improve the user experience.
While there were positives found in the reports that were reviewed by the subcommittee, there were challenges identified too. A sampling of the challenges that were identified in the reports include the following:
Not Posting Enough Documents Online in Accordance with the 1996 E-FOIA Amendments
A March 23, 2015 Office of Personnel Management (OPM) Inspector General (IG) report identified that OPM needs to improve its compliance with the E-FOIA amendments of 1996. This amendment mandates that agencies post key sets of records online, provide citizens with detailed guidance on making FOIA requests, and utilize new information technology to proactively post records online that would become of significant public interest, including those already processed in response to FOIA requests and “likely to become the subject of subsequent requests.” According to OPM’s IG report, as of 2015, OPM does not have a formal policy addressing “the requirement to post FOIA information online that has been requested multiple times (three or more requests). Additionally, OPM’s request tracking system does not identify the type of information requested. Consequently, OPM’s FOIA Office cannot identify multiple requests that should be posted.”
OPM fails to populate its FOIA reading room, which the E-FOIA requires agencies to maintain with, among other things, frequently requested records or records likely to be the subject of FOIA requests.
In 2015, the Department of Justice Office of Information Policy (OIP) issued guidance encouraging federal agencies to proactively post information. Additionally, OIP distributed a checklist to help agencies determine when records should be proactively posted. While the guidance is beneficial, there is no evidence that agencies are following it and the small increase in proactive posting government-wide indicates that more oversight may be necessary.
Not Making Discretionary Releases in Accordance with 2009 Presidential Memorandum
A March 30, 2011 Department of Homeland Security (DHS) Inspector General (IG) report identified multiple instances in which the DHS’s Office of the Secretary staff did not have sufficient knowledge of the FOIA, to the extent that it compromised the agency’s ability to make discretionary releases.
The report indicates that in one instance, the staff “implied that the potential embarrassment of DHS should be considered when making proactive disclosure decisions” despite clear guidance to the contrary. Furthermore, the report documents instances of other senior DHS officials cautioning against making discretionary releases and instructing staff to send only public information in response to a records requests.
Backlogs and Inadequate Searches
A Treasury Inspector General (IG) for Tax Administration report dated September 17, 2014 determined that the Internal Revenue Service (IRS) needed to continue to reduce its backlog of FOIA requests. The report also found that the IRS failed to adequately search for and provide information in 15 percent of its FOIA responses.
A previous IG report dated September 20, 2013 identifies a challenge of not adequately searching for information in response to records requests to be one that is declining. This report determined that the IRS failed to adequately search for and provide information in 5.6 percent of its responses.
Not Reporting FOIA Abuses
The State Department Inspector General (IG) recently published highlights showing that systemic FOIA issues are compounded when people don’t speak out when they know FOIA procedures are not being properly followed. The IG noted that State’s FOIA office gave an “inaccurate and incomplete” no documents response to a FOIA request concerning Hillary Clinton’s email usage even though employees within the Department of State knew both of Clinton’s personal email account and the FOIA request. Additionally, the report determined that the secretary’s office lacked written procedures for handling FOIA requests and that some requests lingered in a queue for more than 500 days without a reply. These findings speak to the importance of an oversight mechanism to address these FOIA failures before they compound into the current crisis facing State’s FOIA Office.
Unclear Fee Waiver Requirements
An Environmental Protection Agency (EPA) Inspector General (IG) report determined that the agency should clarify fee waiver requirements and standardize processing time to reduce concerns of differential treatment among requesters. The IG report urges the agency to “clarify what requesters must demonstrate under the six review factors and when to obtain additional justification from requesters to lessen any perception of potential differential treatment when evaluating fee waiver requests.”
Not Using Technology to Improve FOIA Training Process
A Nuclear Regulatory Commission (NRC) Inspector General (IG) report dated June 14, 2014 determined that NRC management has not utilized effective internal controls to take advantage of FOIA training and available technology. “As a result, the NRC’s FOIA processing costs are high and the timeliness requirements are not consistently met.”
Not Properly Reviewing FOIA Releases for Segregability
A Securities and Exchange Commission (SEC) Inspector General (IG) report dated September 25, 2009 found that the manner that the Commission’s Chief FOIA Officer functioned was not in compliance with the requirements of Executive Order 13392 or the OPEN Government Act.
This report identifies a number of areas where the SEC’s FOIA process needed improvement, not least of which is when the agency conducts review for segregability. The IG specifies “There is not a well-documented process for reviewing documents to segregate potentially responsive documents that can be disclosed and, thus, the search may not be sufficient” despite the FOIA’s instruction that “Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.” Indeed, the IG indicates that in many instances no effort was made to segregate records.
The House Oversight and Government Reform Committee released a report on January 11, 2016 that re-identified many of these challenges. The Committee identified a myriad of FOIA failures across the government including:
- The improper application of FOIA exemptions at the Federal Communications Commission, which redacted the Chairman’s name and initials in official, work related emails
- Roadblocks and poor communication with requesters at the Customs and Border Patrol, which only responded to a requester in one instance after Congress inquired about the status of the request
- Refusing to provide all responsive records at the General Services Administration, which failed to provide a requester with responsive records, despite the requester’s conveyed desire for the documents, by erroneously stating it did not want to charge the requester for non-responsive records
- Excessive fees “that appear to be designed to deter requesters from pursuing requests and create barriers to accessing records” including at the Drug Enforcement Agency (DEA). The DEA charged a FOIA requester nearly $1.5 million for one request for records on “El Chapo” Guzman.
While the Congressional Committee proposes legislative resolutions to these ongoing challenges, this Subcommittee believes that without more effective oversight or compliance mechanisms, the FOIA challenges may continue to occur, even if forbidden by statute.
The Office of Government Information Services (OGIS) has begun issuing assessments of federal agency FOIA programs. To date, OGIS has published assessments of the Customs and Border Protection, the Transportation Security Administration, the U.S. Coast Guard, the Federal Emergency Management Agency, and the National Archives and Records Administration. These assessments are a positive step, but agency participation is voluntary and may take decades for OGIS to review each agency subject to FOIA.
The previously released Inspector General and Government Accountability Office reports and the dozens of others compiled by the Subcommittee demonstrate that the current oversight approaches are insufficient and not improving the FOIA programs throughout the federal government. The first step to improving FOIA oversight and compliance is acknowledging that the current oversight methods are not sufficient. After this acknowledgement, we can begin to endeavor to create a regime that efficiently and comprehensively ensures oversight of the Freedom of Information Act is being correctly administered with a “presumption of disclosure” as instructed by President Obama and Attorney General Holder and holds accountable those who fail to do this.
Agencies Hope FOIA Delays Outlast Public Scrutiny, Upcoming FOIA Committee Vote to Update OMB Fee Guidance, and More: FRINFORMSUM 4/14/2016
“AP didn’t get this through FOIA, did they? If so, maybe it’s time to hire some new redactors. They got a bit too much of an inside view.” This quote (whose author is redacted) comes from documents obtained by AP from the US Agency for International Development (USAID) – yes, through the FOIA – on the sham “Cuban Twitter” account funded by USAID to stir political unrest in the communist country. AP filed the FOIA request when the story first broke in 2014, and USAID officials hoped that the glacial FOIA process would mean that the story was no longer news once the documents were released. One senior official, Mark Lopes, said, “The risk is that it gets FOIA’d later. FOIA will take six months,” going on to say, “I say yes so we get through the next week, six months from now when FOIA comes out, this will all be over?” Lopes underestimated the FOIA delays at the agency – the request took two years to process. The documents clearly show the agency has forgotten – or is willfully disregarding – the President’s instruction that information not be withheld “merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
USAID isn’t the only bad actor willfully disregarding the FOIA – or dragging its heels to improve the FOIA process to keep embarrassing information out of public view.
An Army document leaked last year shows two generals discussing delaying a response to a New York Times FOIA request on concussions at West Point for public affairs reasons. The Times FOIA request sought information on concussions resulting from a mandatory boxing class, and Army surgeon general, Lt. Gen. Patricia D. Horoho, suggested that rather than promptly replying to the request, “trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.” An Army official who opposed encouraging other publications to run a more favorable story leaked the document to the Times. “After learning of the [leaked] document, the Air Force Academy and West Point quickly released concussion numbers.”The FOIA Advisory Committee’s last meeting will be held on April 19, 2016 (register here to attend). The Committee’s biggest deliverable to date is working to update outdated OMB FOIA fee guidelines – that date all the way back to 1987. The DOD’s Jim Hogan, who is also the fees subcommittee chair, notes that the guidance is missing a key word: “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Is the key missing word “some”, “half,” “most”, or something else? The Committee voting to rectify this lingering issue and bring the guidance into the 21st century will be of lasting importance.
Former Senator Bob Graham recently appeared on 60 Minutes and renewed calls to declassify 28 pages that were excised by the Bush administration from the report of the Joint Congressional Inquiry into the 9/11 attacks in 2002. The Bush administration excised the pages, which detail Saudi involvement in the 9/11 attacks, on the grounds that their disclosure would harm national security. Graham said, however, that he remains “deeply disturbed by the amount of material that has been censored from this report,” and the Saudi government is also urging for the pages to be released. Former Secretary of the Navy, John Lehman, added that he – and many other officials calling for the report’s declassification – “know when something shouldn’t be declassified. An[d] the, this, those 28 pages in no way fall into that category.”
Haqqani Network (HQN) fundraising efforts have deep roots in the Gulf States and in the oil industry; the Pakistan Inter-Services Intelligence Directorate funneled $200,000 to HQN for an attack on the on the CIA facility at Camp Chapman; squabbles over low-level militants not giving kickbacks from ransom money to Haqqani leadership; and Hamid Karzai’s brother hooking a Haqqani informant up with a job at a US security base so the informant could provide details on US vehicles and personnel to the terrorist organization. These are all details found in a fascinating collection of declassified documents obtained by the National Security Archive through the FOIA showing the Haqqani Network’s efforts to diversify its funding away from the foreign sources it relied on during the Cold War, including the CIA and Pakistani intelligence services, and towards more traditionally criminal activity. These documents were requested under the FOIA as part of the Archive’s Afghanistan, Pakistan and Taliban project, and we will continue to post on interesting documents as they come in.
U.S. District Judge James Boasberg is not moved by VICE News’s Jason Leopold and MIT’s Ryan Shapiro’s efforts to obtain CIA documents on its very public battle with the Senate Intelligence Committee over the Committee’s report on the CIA torture program (whose status as a federal record remains in jeopardy). Courthouse News Service notes that Leopold and Shapiro “complained about the CIA’s failure to identify which records system it searched before denying access, but Boasberg nixed this argument as ‘oft-used but rarely successful strategy.’”
Director of National Intelligence James Clapper recently sent a memo to intelligence agency heads on the upcoming Fundamental Classification Guidance Review, effectively signaling to the agencies under his jurisdiction that efforts at classification reform are a priority for the intelligence community. Hopefully. Nate Jones tells CNN that while efforts to eliminate the “Confidential” label (the memo asks agencies to consider if this is a possibility) and requiring discretionary releases look good on paper, “the proof will be in the pudding.” The Electronic Frontier Foundation elaborates, noting that “discretionary disclosure without a strong presumption that material must be made public is a hollow effort to increase transparency. And without clear guidance to agencies about eliminating the ‘confidential’ category of classification, they may simply mark the same materials with the next-highest classification category rather than disclose the information.”
The University of Denver’s Sturm College of Law’s Margaret Kwoka has published a thought-provoking paper on how to rectify the often contentious issues surrounding FOIA fees (more on the Archive and Project on Government Oversight’s efforts to identify some of them from the requester perspective here). This Article provides “an in-depth academic study of the commercial use of FOIA, drawing on original datasets from six federal agencies. It documents how corporations, in pursuit of private profit, have overrun FOIA’s supremely inexpensive processes and, in so doing, potentially crowded out journalists and other government watchdogs from doing what the law was intended to facilitate: third party oversight of governmental actors… [the]Article proposes a targeted and aggressive policy of requiring government agencies to affirmatively disclose sets of records that are the subject of routine FOIA requests—a surprisingly large number of the documents sought by commercial requesters. By meeting information needs in a more efficient manner that is available equally to all, affirmative disclosure will enable federal agencies to reclaim public records from the private market and free up resources to better serve FOIA requests that advance its democratic purpose.”
Duane “Dewey” Clarridge, a CIA officer who was involved in the Iran-Contra affair and helped found the agency’s Counterterrorism Center, is dead at 83. In his final report Lawrence Walsh – the independent counsel investigating Iran-Contra – found that “there was strong evidence that Clarridge’s testimony was false.” Clarridge, however, was pardoned by President Bush. Read highlights from Walsh’s final report, curated and analyzed by Archive staff, here.
In the DC area next week? If so, register the American Society of Access Professional’s event celebrating the 50th anniversary of FOIA! Entitled “Food for Thought” the lunch event will be held at Carmine’s and will feature Michael Lemov, who served for eight years as chief counsel to John Moss, the father of the Freedom of Information Act. Lemov has authored the definitive history of John Moss and the Freedom of Information Act, People’s Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights, and will regale attendees with a history of the battles that had to be fought to make FOIA a reality, and what the hopes at the time were in implementing the FOIA.
This week’s #tbt document pick is from the Archive’s newly-launched Cyber Vault, and is a February 11, 1970, Defense Science Board report on security controls for computer systems. Among the conclusions reached was that contemporary technology could not provide a secure system in an open environment, and that it would be unwise to incorporate sensitive information in an open environment system unless a significant risk of accidental disclosure could be accepted.
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Less than a dozen men were running the militant Islamist Haqqani Network (HQN) by the time the State Department declared it a Foreign Terrorist Organization in 2012, and this extremely small group continues to determine which illicit activities the organization engages in to fund its fight against US-led forces in Afghanistan. Defense Intelligence Agency documents dated from 2008 through 2010 recently obtained by the National Security Archive in response to a FOIA request offer a window into a transitional period for the organization, before the State Department declared the group a terrorist organization and the US Treasury designated Haqqani leaders as Specially Designated Global Terrorists in 2014, subjecting them to sanctions. The documents illuminate the group’s efforts to diversify its funding away from the foreign sources it relied on during the Cold War, including the CIA and Pakistani intelligence services, and towards more traditionally criminal activity – and show squabbles over the sharing of ransom money, dispersal of funds to suicide bombers, financial links between HQN and the Karzai government, and Taliban funding for the group’s activities.
One of the early financial challenges for Jalaluddin Haqqani, the group’s founder, was coping with the end of the Cold War and the drying up of American resources. Barbara Elias notes in 2009’s “The Taliban File” that Haqqani received tens of thousands of dollars and weapons from the CIA between 1986 and 1994. CIA funding ended by the mid-1990s, although Haqqani’s relationship with the US only deteriorated in earnest in the late-1990s after the US bombed an HQN-linked training camp in retaliation for al-Qaida attacks on the US embassies in Kenya and Tanzania and Haqqani’s relationship with Osama bin Laden deepened.
A Confidential June 12, 1998, State Department cable, first published in Elias’s 2012 “The Haqqani History,” notes that Jalaluddin advocated for bin Laden within the Taliban, and that bin Laden’s increased power was due at least in part to “the growing strength of his supporters within the Taliban movement.” The US’s growing concern with bin Laden is shown in a May 24, 1999, cable summarizing a meeting between Haqqani and US officials, during which Haqqani agrees that bin Laden is “a problem,” but insists that “maybe the best solution is what is taking place now with him remaining in the country.” Haqqani also says that “he was deeply appreciative of U.S. assistance during the ‘jihad’ (holy war) against the Soviets and the (Afghan) communists,” but remains antagonistic over US destruction of a terrorist camp in Khost, Afghanistan, in August 1998. Haqqani even initiates the meeting by “joking” that it was “good to meet someone from the country which had destroyed my base, my madrassh [sic], and killed 25 of my mujahideen.”
Despite the historical ties between the groups, al-Qaida funding is not a major source of income for HQN; a September 24, 2009, DIA cable shows that when al-Qaida funding was received, it was relatively small amounts that were “generally provided by Al Qaida leader Shaykh Said al-Masri through Sirajudding Haqqani and Jan Baz Zadran, who is a HQN commander in Miram Shah, PK, in amounts of approximately 3,000 – 5,000 USD.”
West Point’s Combatting Terrorism Center (CTC) notes in a 2012 report that Jalaluddin was also motivated to decrease his organization’s dependence on Pakistani financing, and began vigorous fundraising efforts in the Gulf States in the 1990s to do so. A newly released April 8, 2010, DIA cable shows this practice continues. According to the cable, a well-connected individual “travels on behalf of the Haqqani network to a city in the vicinity of Dubai to collect charitable donations which are used to fund unspecified Haqqani network operations.”
However, a series of DIA cables (from January 11, 2010, and February 6, 2010) show that some funding for Haqqani attacks are still provided by the Pakistan Inter-Services Intelligence Directorate, including $200,000 for the December 30, 2009, attack on the CIA facility at Camp Chapman.
During Jalaluddin’s tenure the group also offered microloans to those living in its territory in North Waziristan, Pakistan, in a move that fostered goodwill and “really made a difference in these communities.” The attempts at public relations under Jalaluddin is not entirely unsurprising; a 1997 State Department cable reports Jalaluddin to be “more liberal” in his opinions on social policy, such as women’s rights, and seems to have understood the importance of maintaining credibility with the local community.
Jalaluddin was forced to retire in 2005, however, and his son Sirajuddin assumed the leadership, marking an increase in the group’s illicit activity.
Protecting smuggling enterprises in the border areas under its control, as well as engaging in its own, has become an important source of income for HQN under Sirajuddin. Interestingly, according to the CTC report, HQN imports “the precursor chemicals used to process raw opium into morphine base and heroin, including lime, hydrochloric acid and acetic anhydride (AA). If true, this may indicate that the Haqqanis have a non‐competition agreement with the Kandahari Taliban in the heroin business, or it could simply suggest that Haqqani leaders have realized that smuggling precursors is less risky and often more lucrative, since a glut in poppy production drives down wholesale opium prices.”
These sustained efforts have ensured that the group remains financially autonomous from the Taliban, although it receives a monthly stipend from the Quetta branch “to cover operational costs, and the budget shifts depending on the season and the funding capacity of the Taliban leadership.”
A September 24, 2009, DIA cable notes that the Quetta branch remains a stable source of HQN funding, saying that “A large majority of the Haqqani Network (HQN) funding comes from the Quetta, Pakistan-based Taliban leadership.” The cable goes on to say that “HQN pays fighters who conduct successful attacks against coalition forces (CF) Afghan National Army (ANA) or Afghan National Police (ANP), with larger amounts paid for killing a coalition member. A key point in the dispersal and receiving of funds within the HQN is the videotaping of attacks.”
One of the shifts that occurred along with the change in leadership was HQN’s increase of kidnap-for-ransom, a “growth industry” in which HQN cooperates “seamlessly” with other militant groups, but one that seems to have effected HQN’s credibility. Bowe Bergdahl is perhaps HQN’s most famous kidnapping victim, and would have undoubtedly been on HQN’s list of “legitimate targets,” which include “government officials and security personnel; those who cooperate with government; foreigners; transporters servicing NATO; and alleged spies.” New York Times journalist David Rohde and Afghan diplomat Haji Khaliq Farahi were also targets. The CTC report notes, however, that such behavior “appears to have lowered the network in the public estimation.”
Kidnapping-for-ransom, however, remains a way for unpaid Haqqani militants to make money. Low-ranking militants earn little, if any, money, and operate with a great deal of autonomy – making the occasional moonlighting – and tension over it – all but inevitable. A Secret September 29, 2009, DIA cable recounts one such ransom dispute. “As of late September 2009, Spera District Haqqani Network (HQN) commander Hamid (Rahman) had strained relations with the HQN leadership, including senior commander Siraj (Haqqani), over ransom money embezzled by Rahman. Rahman and an unidentified Iraqi Al-Qaida associate had kidnapped a road construction worker in Spera District for ransom and neglected to send the ransom money obtained to HQN leadership in Pakistan. As a result, Siraj Haqqani ordered Rahman to return to Miram Shah/[redacted] north Waziristan, PK, in order to account for the money. Rahman ignored the order and did not travel to Miram Shah due to fear that he would be killed by HQN leadership for his transgression.”
Donations and fundraising continue to be an important for HQN. A Secret March 22, 2009, DIA cable provides an example of a routine donation for HQN. It notes, “As of mid-February 2009, the Hadika ta Uloom madrassa in Dera Ismail Khan, PK was facilitating financial support for the Haqqani Network (HQN). The leader of the mosque, Maulawi din Mohammad (Khalifa), was facilitating contact between HQN commanders and local businessmen willing to donate money and assistance to the HQN.” The five businessmen contacted, all from the oil industry, provided a total of $17,000 USD.
HQN leaders also recognize the importance of a good media campaign. The CTC report finds that “Just as Jalaluddin before them, network leaders today conduct fundraising road shows, visiting large mosques around the region where they ask for alms from worshipers. As in the past, the Haqqanis appear to realize the importance of publicity materials to communicate their successes and to help to generate donations at these events. The network publishes considerable multi‐media material concerning its activities, and appears to consider publicity a core aspect of financial operations.”
HQN’s complicated relationship with the Afghan government, and its financial payoffs, are also highlighted in a Secret August 31, 2010, cable. The cable explains how a security manager in Khost province, Qabool Khan, simultaneously provides HQN with intelligence on US bases in Salerno and Chapman, while providing HQN with money and the license plate numbers of US vehicles of military personnel and contractors that serve on the two bases. Khan obtained his position with the security company – which posted private security guards on US bases – through Mahmoud Karzai, brother of Afghan president Hamid. “Khan receives $800.00 U.S. dollars per guard, per month, in which $200.00 U.S. dollars goes to the guard, $300.00 U.S. dollars to Khan, and $300.00 U.S. dollars is given to the Haqqani network… in return Khan is not attacked by Haqqani operatives leaving the American base or Khan’s personal residence. Khan leaves his window down when leaving the American base as a signal to Haqqani operatives not to attack his vehicle.”
These documents were requested under the FOIA as part of the Archive’s Afghanistan, Pakistan and Taliban project, and we will continue to post on interesting documents as they come in.