FOIA Reform Sent to President, Privacy Oversight Board May be Curtailed, Powerful Surveillance Letters Not Expanded – for Now: FRINFORMSUM 6/23/2016
The FOIA Improvement Act of 2016 (S.337) was sent to the President’s desk on June 22, and the President has ten business days to sign the bill. If President Obama waits (as he likely will) until the last day to sign it, he will sign FOIA reform into law on the 50th anniversary of the act – on July 4. The bill codifies several significant FOIA improvements; among them agencies must:
- Apply a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), an exemption that currently has no time limit and was recently used to successfully deny a CIA draft history of the 53-year-old Bay of Pigs invasion.
- Update their FOIA regulations within 180 days after the passage of the bills. (A National Security Archive audit shows that too many federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.)
- Improve public digital access to released records.
- See here for Toby McIntosh’s write-up with all the details of what is included in the bill.
The jurisdiction of the Privacy and Civil Liberties Oversight Board (PCLOB) will be narrowed for the second year in a row if the Senate Intelligence Committee’s version of the FY2017 Intelligence Authorization Act becomes law. (PCLOB is an independent agency charged with ensuring that the government’s terrorism efforts don’t infringe on privacy and civil liberties.) Steve Aftergood notes that SSCI’s version would limit the Board’s scope to the privacy and civil liberties “of United States persons” only, and “does not appear to permit even ‘secondary’ consideration of the privacy of non-U.S. persons” – muddying the waters of how PCLOB would – or if it even could – act in areas where nationality is unclear.
Senators Martin Heinrich and Mazie K. Hirono published dissenting remarks to the Committee’s decision, noting that “Limiting the PCLOB’s mandate to only U.S. persons could create ambiguity about the scope of the PCLOB’s mandate, raising questions in particular about how the PCLOB should proceed in the digital domain, where individuals’ U.S. or non-U.S. status is not always apparent.” Senator Ron Wyden also published a dissent, saying “My concern is that by acting to restrict the Board’s purview for the second year in a row, and by making unwarranted criticisms of the Board’s staff in this report, the Intelligence Committee is sending the message that the Board should not do its job too well.”
PCLOB was first curtailed in 2015 when Republicans on the House Intelligence Committee successfully advanced a provision to the 2016 intelligence authorization bill blocking PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by former PCLOB chair David Medine, which argued that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”
PCLOB’s shrinking mandate is troubling, as it has made a number of important contributions to the surveillance debate, including publishing a chart “on how U.S. intelligence agencies use a Reagan-era executive order  to collect Americans’ private information,” that shows most agency guidelines are woefully outdated. “Most agencies have not revisited their handling of data collection since the early 2000s, and in some cases not since the 1980s.”
A 2014 PCLOB report found that the National Security Agency’s (NSA) surveillance of foreign communications is lawful, but that elements of Section 702 come “close to the line” of being unconstitutional. Senators Heinrich and Hirono also argued in their dissent that it is possible that PCLOB could not have reviewed Section 702 under the proposed version of the FY2017 IAA, as it focused “on the communications of foreigners located outside of the United States, but which is also acknowledged to be incidentally collecting Americans’ communications in the process.”
The Senate has blocked an effort by Republicans to expand the use of the FBI’s national security letters (NSL), which demand business records from a wide array of organizations for national security investigations, to include “email metadata and some browsing history information.” The block is a step in the right direction for the NSLs – use of which has grown dramatically after the 2001 Patriot Act lowered the bar for their issuance, but does not address concerns about the NSL’s lack of judicial oversight and their accompanying gag orders.
Last year Nicholas Merrill, who ran the small Internet company Calyx, became the first person allowed to fully disclose the contents of an NSL he received from the FBI in 2004. Thanks to a multi-year court battle Merrill’s gag order was been lifted, and revealed that in 2004 the FBI demanded Merrill “turn over all physical mail addresses, email addresses and Internet Protocol addresses associated with one customer’s account, as well as telephone and billing records and anything else considered to be an ‘electronic communications transactional record.’” The NSL also demanded cell-tower location data and any “screen names” or online nicknames associated with the customer in question.
As recently as 2014, an intelligence panel set up by President Obama proposed, at the very least, requiring judicial approval for issuing NSLs, and cited a 2008 Justice Department Inspector General report as proof that they are extensively misused (more on that 2008 IG report here). The expert intelligence panel also importantly noted that, “We are unable to identify a principled reason why NSLs should be issued by FBI officials when section 215 orders and orders for pen register and trap-and-trace surveillance must be issued by the FISC,” going on to suggest that a transition should take place “as soon as reasonably possible.”
The National Security Agency is withholding 90-year-old information on early American cryptanalytic efforts against Russia and the Soviet Union from a 20-year-old document on the grounds that releasing the information could “reasonably be expected to cause identifiable or describable damage to national security.” Specifically, the NSA claims that the release of the information would harm another government agency’s (OGA) “intelligence activities (including covert action), intelligence sources or methods, or cryptology” – the OGA cited by the NSA is either the Defense Intelligence Agency (DIA) or the CIA. The very dubious withholding joins a growing list of incredulous claims of secrecy, including:
- The CIA withholding documents from 1917 and 1918 — including a document that described World War 1 “secret ink” recipes and instructions on how to open sealed letters covertly.
- The Defense Department needlessly redacting Nikita Khrushchev’s public statements about Jupiter missiles in Turkey from a 50-year-old document; and
- The DIA withholding large sections of a 1975 biographical sketch of General Augusto Pinochet on national security grounds, including Pinochet’s liquor choices – “scotch and pisco sours” – even though it had released the document a year earlier without the redactions.
The National Security Archive today posted a collection of recently discovered British documents that provide a new account of the CIA’s role in a top-secret plan to ravage the Middle East oil industry in the event of a Soviet invasion, turning the oil companies into a paramilitary force ready to execute the “denial policy.” Versions of the “denial policy” remained in effect at least until the Kennedy Administration. The documents also show that British military officials went so far as to contemplate going nuclear to get the job done if suitable conventional weapons were not available.
Michael Landis has a good piece in We’re History on how the X-Men trilogy are inspired by Cold War diplomacy, concluding that “These three connected films show three crucial moments in the Cold War, and three distinct periods of American history, all exploring the dangers of militant nationalism and the rights of racial minorities in a majoritarian society.” It’s worth keeping in mind, however, that the Cuban Missile Crisis eyeball-to-eyeball myth (the “climatic confrontation between US and Soviet ships off the coast of Cuba”) never happened; rather, “the missile-carrying ships were already headed back to the Soviet Union at this point, and were at least 500 nautical miles from the closest American warship.”
Today’s #tbt pick is chosen with the recent cease-fire agreement between the Colombian government and the Revolutionary Armed Forces of Colombia (FARC) in mind. Today’s #tbt pick is a posting from the Archive’s Michael Evans on the under-the-table agreement between the Chiquita Brands International and Colombian terrorist organizations – including FARC. Evans notes:
A Chiquita “Audit Memo” from December 1993 recommended that the company conceal payments to guerrilla groups “to maintain the appearance of a responsible corporate citizen.” By 1995, the company had a “one-inch high binder” of “Boys in the Hills,” according to annotations on another Chiquita accounting record. (“Boys in the hills” is a relatively common expression for guerrilla insurgent groups.) A handwritten memo from 1996 explained how payments to the FARC, ELN and EPL guerrilla groups worked. “We negotiate with all of them,” according to the memo. The EPL, in particular, “helped us out a lot with [the] labor union issue.”
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The United States and Great Britain concocted plans in the late 1940s to destroy Middle Eastern oil wells in case the Soviet Red Army ever decided to invade the region, according to a posting by the National Security Archive today. The plans changed over time but a version of them remained in place at least until the Kennedy administration.
Furthermore, British military officials went so far as to contemplate going nuclear to get the job done if suitable conventional weapons were not available.
These and other revelations appear in a group of records journalist Steve Everly uncovered through research at Britain’s National Archives. Everly first broke the story of the Truman administration authorizing plans to blow up petroleum facilities in a story for the Kansas City Star in 1996, co-written with Charles. R.T. Crumpley.
These activities contemplated by Washington and London would have constituted interventionism on a scale hard to imagine nowadays. (They bring to mind images of Kuwait’s smoldering oil fields after Saddam Hussein’s retreat in February 1991.) But a key point to keep in mind was the objective of blocking a Soviet invasion.
It’s easy in this day and age to forget the dread many in the West felt at the notion of advancing world communism. By 1948 and 1949, when Harry Truman signed NSC 26 and 26/2, approving the oil denial operations, Moscow had already subjugated the nations of Eastern Europe, the communist coup in Czechoslovakia had just taken place, and the Berlin Airlift was underway after the Soviets tried to blockade the city.
A couple of years earlier, Stalin had used brute military strength and subversion in the so-called northern tier states of Turkey and Iran to try to intimidate their governments into granting concessions. U.S. diplomats and intelligence officers serving in Iran in the late 1940s and early 1950s took it for granted the Red Army had its sights on the geographically strategic and oil-drenched Gulf states. John Waller, who was stationed in Iran at the time and later rose to become a senior CIA official, told this author in an interview several years ago that local authorities in the northern provinces of Iran assumed it wasn’t a matter of if but when the Soviets would come marching through.
Still, the idea of destroying another country’s industrial infrastructure is jarring. And this was Harry Truman, whose ideas on interventionism are usually seen as far less extreme than his successor, Dwight Eisenhower, who approved the infamous 1953 coup against Prime Minister Mohammad Mosaddeq, which Truman had rejected almost a year earlier.
Of course, the architects of the plans described in these documents would not have described themselves as interventionists. They saw themselves as saviors of not only the Western world (against a Soviet juggernaut intent on choking off vital oil supplies) but of the powerless Gulf states that would be condemned to years of harsh occupation. Difficult as it is for many to accept nowadays, this was also one of Eisenhower’s primary rationales for the 1953 coup. The British and even some of Ike’s advisers may have had other objectives including naked profiteering from the oil industry, but it is a mistake to overlook the motive of altruism (however self-deluding it was at times) when trying to understand the United States’ vision of itself in the modern world.
These documents uncovered by Steve Everly (see the related article on Politico) are also interesting from the standpoint of government classification/declassification decisions. Iran has been a super-sensitive topic for policymakers since the revolution of 1978-1979. Quantities of records on Iran from the archives of the United States, Britain, Russia and elsewhere have been withheld for decades on various grounds, notably the concern not to spark blowback inside Iran by hardliners looking for excuses to denounce the outside world.
The 1953 coup is the poster child here. (See here, for example.) Yet somehow the British (MI6, at least) are more comfortable with the world knowing some of their representatives contemplated nuking the sovereign states of the Gulf than they are acknowledging their part in a political operation that has been an open secret for decades.
This interview, conducted by Dr. Klaas Voß (Hamburg Institute for Social Research), is part of a seven-part series on the evolution of Cold War research — Taking Stock of Cold War Research. The interview initially appeared on the Berlin Center for Cold War Studies website and on the Military History Portal.
Part I: Origins and Evolution of Cold War Studies
“Are we currently experiencing a new Cold War”? This question has recently been discussed in the media. Would you agree?
I do not believe that we are currently experiencing a new Cold War. We are experiencing a new period of hostility and profound mistrust between Russia and the West as a whole, but especially between Russia and the United States. However, this period lacks two key characteristics that were integral to the Cold War—the Communist ideology, which stipulated class struggle as a basis for international relations, and the geostrategic superpower conflict, in which the Unites States and the Soviet Union enjoyed rough parity by the early 1970s and treated each other as the main global rival (giving them a status of equals).
I think that defining this period as a new Cold War might focus one’s attention on the familiar factors discussed in the extensive Cold War historiography, but miss the new dynamics of the new period, such as nationalism and terrorism, role of non-state actors, new threats, and the non-ideological, corporatist nature of Putin authoritarianism. Also, in some aspects, this new period might be even more dangerous. What deeply concerns me personally is that in Russia this new period differs from the Cold War in at least one important way—the rejection of Western liberal values by a large part of Russian society, and the genuine anti-American feeling, which is only partly due to the successful official propaganda.
What have been the most important trends and developments in Cold War research since 1990? Which new areas were explored in the last 25 years?
In my view, the single most important development has been the multilingual multiarchival research, which became possible in the 1990s with the opening of the Eastern bloc archives. Hopefully, this kind of research is becoming the norm in the Cold War studies. Another important feature is collaboration between scholars from different countries, most importantly across the former Iron Curtain, which, unfortunately, is becoming less frequent now than in the 1990s. Another important new feature of the Cold War research is the focus on the Third World and regional and societal causes of Third World conflicts.
In the 1990s, there was a brief period in which former Soviet/Russian archives were relatively accessible for historians. Was this window of opportunity used wisely – and how did it change the field?
I personally benefitted greatly from the opening of the Soviet/Russian archives. I think it changed the field profoundly by allowing both Western and Russian historians to see the Cold War from the perspective of the Soviet bloc and therefore enabled historians and general public to practice empathy and more rigorous research. This opening resulted in real breakthroughs in many important areas of research, the best example being the history of the Cuban Missile Crisis.
At the time when the Soviet archives opened, the researchers (at least most of them) working in them did not think in terms of window of opportunity, we thought it was the new normal. Had I known that the new openness would be temporary, I would have spent every day of my summers of 1993 and 1994 in the archives and copied as much as possible for future research.
However, some Western researchers and organizations with unlimited funds contributed to the commercialization of the Russian archives and to the eventual closing of the window of opportunity. Nonetheless, due to efforts of many individuals and organizations, a great number of Soviet documents are now available in the West, such as Fond 89 at the Hoover Institution.
Part II: The Status Quo
In terms of actors, geography, and time periods, what are the present “gravity wells” in Cold War Studies?
As for actors, I noticed an increasing significance of Third World actors, non-state actors and a growing interest in both societies (as a whole) and individuals. Geographically speaking, Europe, East Asia and Africa seem to capture the interest of scholars. There is currently a strong interest in the end phase of the Cold War and the 1970s.
The National Security Archive has become famous for its constant battle for the release of new documents under the U.S. Freedom of Information Act (FOIA). How would you compare the release policy in the U.S. to that of other countries? How would you describe the situation in Eastern and Western Europe?
In the United States, the FOIA is imperfect but it does follow an established practice and consistent effort over the years, leading to positive results in most cases. For me, the most important feature of the FOIA is the assumption that an individual has a right to see the document of interest to him or her regardless of how recent it is (with some exceptions) unless there are still specific grounds to classify it as secret.
As far as I know, in Western Europe the time limits for declassification remain relatively strict and the declassification process for documents regarding foreign policy and security is more complicated. In Eastern Europe, the archives retained some of the openness that resulted from the end of the Cold War. In Russia, however, declassification process has ground to a halt, many documents were reclassified, or access to them is limited to privileged researchers and the procedure of working in the archives is often unnecessarily complicated.
At the same time, there are very important collections that have been recently added to RGANI [Russian State Archive of Contemporary History] funds, such as the Brezhnev, Andropov and Chernenko collections that are completely open and accessible to researchers. The irony is that if one reads the Russian FOI law, on paper it looks even better than the U.S. law, but it simply does not work, especially as it pertains to documents of the Soviet period.
Which advice would you currently give to scholars who want to focus on Soviet political, diplomatic or military history during the Cold War? What are the best chances for realizing a document-based book project in this field?
First of all, learn Russian if you are serious about document-based research. In addition to the ability to read documents and conduct interviews, it will bring you a lot of positive encouragement and help from Russians who you encounter on the way, even archivists. Go to Russian archives and spend some time (be prepared to spend much more time than you would expect to spend in Western archives) finding out what is available. Show some persistence, you will be rewarded.
There is a general notion in the West that the Russian archives are closed; that is not true. Although access to military and KGB archives is extremely limited, there are gold mines for a serious researcher available at RGANI, GARF [State Archive of the Russian Federation] and RGASPI [Russian State Archive of Socio-Political History]. Do not forget to check online descriptions of collections—especially helpful (down to individual file level and searchable) for GARF. Foreign Ministry archives are quite cumbersome (no open opisi [finding aids]) but very rich for most of the time period of the Cold War.
Check Russian documents publications—an impressive number of them are coming out every year, some as a result of collaboration between Russian archives and Western academic organizations, the Yakovlev Foundation and publications by Russian academic institutes. Do not overlook private archives and collections, such as the Gorbachev Foundation. Make sure that you checked Soviet documents available in major archival collections in the West, such as the Hoover Institution and the Harvard Cold War Center. There are also great oral history materials, they are especially important for the period of the end of the Cold War. If you do not yet have the workable level of Russian, you can start with translated documents such as the impressive collection of the Cold War International History Project and electronic postings and published volumes by the National Security Archive. And finally—come visit the National Security Archive—we have a great collection of Soviet and Russian documents and we will do our best to give you some good advice on your topic.
Part III: Looking Ahead
In some research circles (including the Wilson Center and recent document releases by the National Security Archive), there seems to be a renewed interest in Cold War nuclear history and strategy. Could this trajectory prove to be of broader significance to the field?
I would think so because nuclear weapons defined so much of the Cold War realities and because the story of nuclear weapons is so relevant today. Development of nuclear weapons certainly contributed to the origins of the Cold War and to the intense mutual suspicions and fear on both sides of the divide. In addition to being the basis of the Cold War balance of power, nuclear weapons had an immeasurable impact on the psychology of the Cold War.
Besides, it is worth studying how even in the Cold War both sides found a way to cooperate in limiting and ultimately reducing these weapons and engaged in comprehensive multi-year negotiations where participants developed better knowledge and understanding of the other side. This nuclear learning later contributed to the end of the Cold War. Lessons learned from Cold War crises and these negotiations are applicable today in the world where nuclear weapons became more widespread and arguably more dangerous.
Which new impulses can we expect in the next few years from research conducted in former Communist bloc countries? And are there any hopes for a better availability of Russian documents?
One is listed above—more interest on nuclear history. Another is the focus on the society, various groups below the political leadership level that were important actors in the Cold War. Also an important impulse is comes from the small actors, small states, who were often perceived to be just puppets of the superpowers, but in fact had their own interest and roles.
I think there is hope for better availability of documents on the Russian side but these might be coming in official publications or in focused declassifications that are made on state initiative for certain periods and topics of Soviet history. Even though it does not fit into the Cold War studies field, I would like to emphasize the subject of utmost importance in the contemporary history of Russia and the former Soviet states—the early post-Cold War years—the Russian experience of 1990s and the role of the United States, including the denuclearization of the FSU, the economic reform, and the expansion of NATO.
Coming full circle: How might the current political situation (Ukraine, sanctions etc.) affect Cold War History in Eastern European countries and in Russia?
Coming full circle is a good formulation. There is a renewed interest in history in Russia now. It is fueled to a large extent by the nationalist agenda. Study of history was hailed by the Russian president as the most important of sciences. We now see history used as a political weapon more and more often, especially after the start of the conflict in Ukraine. There is an overwhelming number of pseudo-historical publications filling the shelves of Russian bookstores. Cold War research is popular in Russian universities. I can envision more post-Cold War revisionism in Russian Cold War studies with themes such as the U.S. drive to global superiority and attempts to weaken Russia and deny it legitimate spheres of influence to be reflected in more serious, document-based dissertations and monographs.
The National Security Agency is withholding 90-year-old information on early American cryptanalytic efforts against Russia and the Soviet Union from a 20-year-old document on the grounds that releasing the information could “reasonably be expected to cause identifiable or describable damage to national security.”
Specifically, the NSA claims that the release of the information would harm another government agency’s (OGA) “intelligence activities (including covert action), intelligence sources or methods, or cryptology” – the OGA cited by the NSA is either the Defense Intelligence Agency (DIA) or the CIA.
The NSA withheld the passage on 1920s cryptanalytic efforts from “Bourbon to Black Friday: The Allied Collaborative COMINT Effort against the Soviet Union, 1945 – 1948,” an internal NSA history authored by Michael Peterson. The agency, however, released information on:
- Details of the COMINTERN “cipher code,” surreptitiously acquired from Stockholm , Sweden , in 1923;
- Similarly acquired explanation of a Soviet dinomic system in 1925; and
- Details of what was thought to be a Bolshevik code used in Java in 1928, acquired by the Office of Naval Intelligence from Dutch authorities.
The NSA withholding 90-year-old information adds to a growing list of dubious secrets. Other (by no means exhaustive) examples include:
- The CIA withholding documents from 1917 and 1918 — including a document that described World War 1 “secret ink” recipes and instructions on how to open sealed letters covertly. The CIA kept these documents secret until 2011, and then misleadingly crediting their declassification to “recent advancements in technology.” The real reason these documents saw the light of day, however, was of a decade-long Freedom of Information Act fight, lawsuits, a Mandatory Declassification Review request, and finally, an appeal to the Interagency Security Classification Appeals Panel to pry the documents loose;
- The Defense Department needlessly redacting Nikita Khrushchev’s public statements about Jupiter missiles in Turkey from a 50-year-old document;
- The DIA withholding large sections of a 1975 biographical sketch of General Augusto Pinochet on national security grounds, including Pinochet’s liquor choices – “scotch and pisco sours” – even though it had released the document a year earlier without the redactions;
- Multiple instances of declassification authorities withholding the contents of documents on anti-ballistic missiles, strategic arms control, and U.S. policy toward China, all of which had been declassified years earlier, with one of them even published in the State Department’s historical series, Foreign Relations of the United States;
- Defense Department classification of “Poodle Blanket” contingency plans from 1961 for a possible confrontation over West Berlin; and
- Declassifiers withholding different portions of the same State Department document four times over a 12-year period.
The NSA’s very dubious withholding also supports arguments made by National Security Archive executive director Tom Blanton in a July 2015 Washington Post op-ed, in which he says, “real secrets make up only a fraction of the classified universe, and no secret deserves immortality…I showed Congress the estimates over the years of how much gets classified that doesn’t deserve to be. Ronald Reagan’s executive secretary for the National Security Council, Rodney B. McDaniel, said 90 percent. Thomas H. Kean, the Republican head of the 9/11 Commission, said 75 percent of what he saw that was classified should not have been.”
It’s safe to say NSA declassifiers didn’t get a chance to read Blanton’s op-ed. They should go back and do so.
Many thanks to Dr. Jeffrey Richelson, director of the Archive’s Cyber Vault, for bringing this document to my attention.
FOIA Reform Awaits President’s Signature, CIA Releases Some Torture Records while Preservation of Full Torture Report Remains in Limbo, and More: FRINFORMSUM 6/16/2016
Agencies will no longer be able to withhold historical documents – like the CIA’s history of the Bay of Pigs invasion – under FOIA’s expansive 5th exemption when the President signs the FOIA reform bill passed by Congress earlier this week. The bill (S. 337) was introduced by Senators John Cornyn, Chuck Grassley, and Patrick Leahy in the Senate, and was supported by Representatives Jason Chaffetz and Elijah Cummings in the House. (Toby McIntosh of FreedomInfo.org and Daniel Schuman have good write-ups on the bill, what made it in the final version, and the four-year struggle to make its passage a reality.)
The bill reflects many of the findings of the National Security Archive’s FOIA audits and litigation and is on its way to the President’s desk – and the White House has indicated the President will sign it.
Archive audits going back to 2009 show that most federal agencies have continued to ignore President Obama’s “presumption of disclosure” guidance that he issued on his first day in office. The new bill codifies this presumption, thereby requiring that records be released unless there is a foreseeable harm or legal requirement to withhold them.
A 2014 National Security Archive audit found that too many federal agencies have not updated their FOIA regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms. The new bill requires all agencies update their regulations within 180 days of the laws passage, including the new statutory language.
The Archive’s lawsuits against the CIA and the State Department exposed those agencies’ practice of denying public access to historical documents (like the internal history of the Bay of Pigs disaster, and the telephone transcripts typed up by Henry Kissinger’s secretaries) by invoking FOIA’s “withhold it because you want to” exemption 5, on the grounds that their release would “chill” the official deliberative process. Neither the State Department nor the CIA claimed there was still classified information in those 30- and 40-year-old records, but relied instead on an over-broad reading of the exemption. The new FOIA bill mandates a 25-year sunset on the deliberative exemption and will curtail such senseless secrecy.
Of course, as FOIA advocates learned last session, the passage of FOIA reform in both the House and Senate does not guarantee that the bill will become law. As such, the Archive and a broad coalition of other Open Government groups have mounted a wide-ranging campaign to celebrate FOIA’s upcoming 50th birthday on July 4, 2016, to help argue that the law needs to be reformed by then.
The National Security Archive this week highlighted 50 of the year’s biggest news stories made possible by FOIA. The diverse front-page news shows how FOIA can impact human rights, government accountability, and even what you eat. Here is a sampling of this year’s top stories:
- FOIA releases to the National Security Archive provided critical evidence in the historic conviction of 14 Argentine military officers and 1 Uruguayan military officer for their participation in the Operation Condor international murder ring and were cited 150 times by the prosecution.
- Documents released through FOIA proved Pentagon officials deliberately misled Congress on the Defense Department’s handling of sexual assault cases in order to undermine reform legislation.
- Documents released by the Food and Drug Administration under FOIA show that cheese marketed as being“100% parmesan” contained 0% parmesan – and some wood pulp.
- Government audits freed by a FOIA lawsuit show widespread billing mistakes – primarily overcharging – in Medicare Advantage program.
The CIA’s recent release of documents on its torture program in response to ongoing FOIA lawsuits also represents significant FOIA victories. In response to an ACLU FOIA suit, the agency this week disclosed detainee transcripts describing the torture program, adding “first-person testimony to the growing historical record.” The CIA also released 50 documents this week in an overlapping FOIA lawsuit brought by Vice News’s Jason Leopold; the heavily-redacted documents reveal the graphic conditions that led to the 2002 death of detainee Gul Rahman at a CIA black site prison in Afghanistan. The releases are a step in the right direction, even as the National Archives and Records Administration continues to defer to the Justice Department’s dubious guidance and refused to use its authority to call the Senate Intelligence Committee’s report on the CIA’s torture program a federal record.The Public Interest Declassification Board’s Sanford Ungar decried expanding rates of government secrecy and the National Archives’ lack of preparation for an exponentially-growing backlog in a recent Washington Post opinion piece. On the backlog rates at the Presidential Libraries in particular, Ungar says that NARA is “out of space to store the paper records and cannot possibly review them fast enough to make room for all the new ones.” He goes on to say that, “‘Review’ here is a euphemism for an often-tortuous process in which overtaxed declassification experts from various federal agencies painstakingly go over documents line by line to determine what can be made public without posing a national security risk.”
In its December 2014 report the Public Interest Declassification Board wrote that the National Declassification Center must understand that “clinging to manually-intensive [referral] processes diverts increasing dwindling resources …There must be an understanding and agreement that the current practice of having one, two or more persons conduct a laborious page-by-page declassification assessment for each record under review is an unsustainable practice.” Ungar reiterates that sentiment in his Post piece, and urges the National Declassification Center to abandon its “factory” approach to declassification and embrace electronic declassification of sensitive documents.
In a recent posting on the Senate Intelligence Committee’s adoption of the Fundamental Classification Guidance Review, Steve Aftergood notes that, because of uncommonly assertive reporting requirements, “the bill would reset the terms of the congressional intelligence oversight relationship, seemingly dispensing with comity and imposing mandatory disclosure to Congress of various categories of records.” Specific reporting requirements highlighted by Aftergood include expectations that the Privacy and Civil Liberties Oversight Board keep SSCI informed of all the Board’s activities, the submission of copies “of all memoranda of understanding between U.S. intelligence agencies,” and “notification of all classified and unclassified presidential directives to intelligence agencies, and their implementation.”
A federal judge has blocked the city of Seattle from releasing information sought by a public records request on the location of surveillance cameras the FBI had placed around the city, citing the government’s argument that doing so could jeopardize national security. The FBI has also stopped sharing information about its use of the cameras with the city’s public utility, Seattle City Light, “because of possibility the city will make the information public.”
The Office of the Director of National Intelligence (ODNI) recently released a report revealing that the intelligence community (IC) workforce is less diverse than both the federal workforce and the overall US workforce. In its announcement of the release – which is the first time the ODNI has publicly released its demographics – ODNI admits the IC struggles “to recruit talented officers who mirror the diverse country they serve,” going on to say, “Despite significant efforts, the IC [intelligence community] has not substantially increased the number of minority employees over time.”
Government Attic posted Harry Markopolos’s March 13, 2014, presentation before the Council of Inspectors General on Financial Oversight meeting on the detection of the Bernie Madoff’s Ponzi scheme and the failure of the Securities and Exchange Commission to take action. The presentation was released thanks to FOIA.
The Department of Health and Human Services is proposing to revise its FOIA regulations and comments are due by August 15, 2016. The proposed changes look – for the most part – pretty good, and include language allowing the department to waive fees as a matter of discretion. The regulations do not, however, reflect the D.C. Circuit Court of Appeals recent ruling that students are entitled to the same FOIA fee considerations as teachers. Thanks to Adam Marshall at the Reporters Committee for the Freedom of the Press for pointing out the proposed regulations.This week’s #tbt pick is the Archive’s 2007 posting on the George Polk case, and how the CIA lost documents concerning its investigation of the mysterious 1948 murder of the CBS reporter and destroyed its file on FOIA requests for Polk documents.
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Ed. note: This article has been crossposted from FreedomInfo.org
By Toby McIntosh
Reforms are coming to the US Freedom of Information Act.
The House on June 13 approved a Senate bill to amend FOIA and President Obama will sign it, the White House said.
The bill writes into law a specific presumption of openness, strengthens the FOIA ombudsman, puts a time limit on the use of the deliberative process exemption and mandates more proactive openness, among other things.
Getting any legislation through Congress currently is nearly impossible, so the passage of the FOIA amendments without objection ranks as an unusual occurrence.
Achieving the bipartisan unanimity necessary to avoid killer roadblocks, however, came at a price. The final product was somewhat weakened over the course of the four-year campaign for its passage and doesn’t include even some relatively innocuous provisions from the House bill, such as requiring every agency to accept FOIA requests by email.
“… a lot of things” were not included in the final product, said Rep. Darrell Issa, a Republican from California and a leading sponsor of the bill, during the House debate, concluding, “I don’t want to belabor the point, but when this bill becomes law and is signed by the President, there will be enough left for a new bill to start again.” Rep. Elijah Cummings, a Maryland Democrat, noted the email provision during the floor debate, saying, “This is a simple improvement that every agency should adopt, and I look forward to working with Chairman [Jason] Chaffetz [R-Utah] in the years ahead on such commonsense reforms.”
Congressional sources said it is too soon to discuss strategy, which could include attaching the orphan provisions to other legislation.
Variety of Reforms Enacted
The key provisions passed would:
- codify the “presumption of openness” so as to require that records be released unless the agency “reasonably foresees that disclosure would harm an interest protected by an exemption” or if disclosure is disclosure is prohibited by law. This language mirrors the Obama administration’s and the Department of Justice’s(nonbinding) instructions on FOIA.
- limit to a period of 25 years the ability of agencies to keep internal deliberations confidential under exemption (b)(5), an exemption that currently has no time limit and was recently used to successfully deny a CIA draft history of the 53-year-old Bay of Pigs invasion.
- mandate that the government create a “central online request portal.”
- prohibit agencies from assessing search or duplication fees when the agency fails to meet the notice requirements and time limits set by existing law, unless a request is considered voluminous (more than 5,000 pages).
- require agencies to update their FOIA regulations within 180 days after the passage of the bill.
- strengthen the Office of Government Information Services (OGIS), the FOIA ombudsman, by giving OGIS the authority to report directly to Congress and provide legislative recommendations without approval from other executive branch agencies.
- require agencies to publish material that has or might “become the subject of subsequent requests for substantially the same records” or if the information has been requested three or more times.
- require agencies to make FOIA guidance and FOIA reports available for public inspection in an electronic format.
- establish a Chief FOIA Officers Council charged with developing initiatives to increase transparency and compliance with FOIA and more fully define the role of Chief FOIA officers.
- require agencies to notify requestors of the right to seek assistance from the FOIA Public Liaison for the responding agency and the right of a requestor to seek dispute resolution services. OGIS “shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to a dispute.”
Consolidated Request Portal Mandate
The bill mandates “the operation of a consolidated online request portal that allows a member of the public to submit a request for records under to any agency … from a single website” and gives the implementation responsibility for this to the Office of Management and Budget.
The provision does not appear to mandate a unified request system and opinions about its meaning vary.
A related clause says, “This subsection shall not be construed to alter the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. “It says OMB “shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section.”
A website run by the Justice Department portal already lists the FOI websites of federal agencies,FOIA.gov. Efforts to plan a new such site, openFOIA, have not materialized. FOIAOnline is a government-created site with 12 voluntarily participating departments.
The operating software for FOIA processing is provided both by the private sector and by government-developed systems. Commercial providers lobbied against a combined national site based on FOIAOnline.
House Intelligence Exemptions Not Included
Senate strategists were aiming to achieve 100 percent support for their bill in a body where even one objecting senator can easily block action. Senate sponsors fearing that pushing the House bill, or even adding provisions from it, would create problems. One key argument was to remind senators that they had all voted for the Senate bill.
(The differences between the House and Senate FOIA reform bills were analyzed and charted by Wendy Ginsburg of the Library of Congress Congressional Research Service and explained by Nate Jones of the National Security Archive.)
By adopting the Senate bill, the House effectively conceded on a provision of its bill that would have prohibited disclosure of records that “would adversely affect intelligence sources and methods.”
Critics had called the language vague. They also said that a FOIA exemption now exists for properly classified material and that are a number of other federal laws prevent disclosure of intelligence sources and methods.
Changes Made as Bill Advanced
For the most part, however, the House bill included provisions that pro-transparency advocates would have liked to see passed.
One key difference was in the House language defining the presumption of disclosure. The House added a different twist by also requiring that information could be withheld only if an agency foresaw that disclosure would “cause specific identifiable harm to an interest protected” by an exemption.
The so-called specific harm test was opposed quietly by the Justice Department and financial regulatory agencies. (See FreedomInfo.org post mortem on the failure of the 2104 bill and a laterstory on 2015 disclosures about DOJ’s position.)
During the course of Senate development of the bill, the scope of the 25-year sunset provision concerning material exempted through the use of the deliberative process exemption b(5) was diminished. The 25-year sunset applies to the “deliberative process” privilege of Exemption Five (which covers drafts, and communications including emails and memos), but not to the attorney-client privilege and attorney work product privileges.
An early goal on deliberative process championed by FOI reformers was lost in 2014 when the Senate Judiciary Committee cut a so-called “public interest balancing test.” (See previous FreedomInfo.org report.)
House Provisions Not in Senate Bill
More than a dozen items in the House bill were not contained in the Senate bill and so were not adopted. These include provisions that would have:
- required the court to assess “reasonable attorney fees and other litigation costs” against the U.S. government in cases when a complainant prevails in a FOIA lawsuit.
- Authorized applicable federal inspectors general to review agency compliance with FOIA, make recommendations to their respective agency heads, and recommend adverse action to the agency head if needed.
- required agencies to assign a tracking number to all requests and establish an automated system that would allow requestors to check the status of their request. Under current law, tracking numbers are only assigned to requests that will take longer than 10 days to process.
- required agencies to provide a name, phone number, and email address of an agency employee who can provide information on the status of each request received by the agency.
- required the agency to notify a requester in cases when the agency consults with another agency or outside entity that has a substantial interest in the requested record and to describe the consultation process.
- required agencies to provide “a detailed explanation” of assessed FOIA administration fees,
- prevented the withholding of opinions that are controlling interpretations of law, final reports or memoranda created by an entity other than the agency that the agency used to make a final policy decision, guidance documents used by the agency to respond to the public.
- clarified that the name and position of any employee “responsible for the denial or partial denial” or responsive records should be included in the requester’s notification of denial.
- clarifed Exemption 6 which allows agencies to withhold records that would “constitute a clearly unwarranted invasion of privacy” if released. The provision would clarify that “personal information such as contact information or financial information” can be appropriately withheld.
- stated that releasing the name of a federal employee engaged in an official duty would not constitute an invasion of personal privacy.
- required an agency that denies a records request to provide the requester a list of the records that were withheld, unless provision of such a list is prohibited by law.
- required agencies to report and justify to the Department of Justice each case in which they determine that “disclosure of the existence of the records could reasonably be expected to interfere” with law enforcement proceedings or could identify a confidential informant.
- required the Government Accountability Office (GAO) to conduct audits of individual agencies’ FOIA practices, catalog the use of Exemption 3, and review and prepare a report on FOIA requests by agencies pertaining to entities that received assistance under Title 1 of the Emergency Economic Stabilization Act of 2008.
- required GAO to study at least five agencies “to assess the feasibility of implementing a policy requiring noncustodians to search for records” responsive to a FOIA request.
- require agencies to ensure all employees receiveannual training on their FOIA-related responsibilities.
- required agencies to report any violation of FOIA laws or regulations to the affiliated agency inspector general.
- Made employees found to have intentionally violated a FOIA law or regulation would subject to the suspension and removal provisions of Title 5.
Changes Precede 50th Anniversary of Law
The last amendments to the FOIA came in 2007. A history of the law, along with examples of 50 recent FOIA success stories, has been posted by the National Security Archive, the sponsor of FreedomInfo.org.
The FOIA reforms were advocated by groups including the broad Fix FOIA by 50 coalition, whose name references initial passage of the FOIA on July 4, 1966.
A press release by the Sunshine in Government Initiative said:
“These FOIA reforms are a high-water mark for FOIA,” said Rick Blum, director of the coalition. “These changes will ensure future administrations respond to FOIA requests from a presumption of disclosure. Just as important, the bill also gives the FOIA Ombudsman the independence it needs to mediate FOIA disputes and make unflinching recommendations to Congress and the President on ways that agencies can improve their FOIA responses.”
A statement by Patrice McDermott, Executive Director of OpenTheGovernment.org said: “This reform bill is the result of tremendous efforts on the part of our colleagues in the FOIA community, and, especially, our allies in Congress in charge of conducting FOIA oversight: House Oversight and Government Reform Committee Chairman Jason Chaffetz and Ranking Member Elijah Cummings; and Senate Judiciary Committee Chairman Charles Grassley, Ranking Member Patrick Leahy, and Senator John Cornyn – and their indomitable staffs.”
After this legislation becomes law, it is my hope that the House Oversight and Government Reform Committee and Senate Judiciary Committee continue to work together to push additional reform to FOIA and federal transparency. In particular, the administration’s abusive claims around privileged information begs for resolution in a more equitable way. In addition, with the Justice Department’s key role in undermining the FOIA bill and promulgating regressive FOIA regulations, it is a worthy target of granular congressional oversight. But for now, it is important to celebrate a hard-fought victory.
Although the bill is a positive step forward, it falls short of fixing some of FOIA’s biggest problems, including agency delay and stonewalling. EFF has previously called on Congress to provide more resources – both technical and financial – to speed up agency processing of FOIA requests. We think those incentives should be combined with penalties for agencies that do not meet deadlines or for personnel who actively thwart disclosure.
We’ve argued for big changes to the law that would mandate disclosure of records in close cases – the public interest in disclosure should outweigh secrecy. We’ve also argued for small changes, including adding a comma to make controversial law enforcement techniques more public and a requirement that all agencies accept FOIA requests via email.
Tom Blanton, the National Security Archive’s Executive Director, recently told a packed house at Columbia School of Journalism’s FOIA @ 50 conference that FOIA releases to the Archive on Operation Condor – a coordinated, cross-border system of repression implemented by right-wing Southern Cone dictatorships – have had “enormous human consequences,” including playing a significant role in the recent sentencing of 18 Argentine military officers for their participation in the operation. Blanton cited a June 10, 1976, memcon showing that Secretary of State Henry Kissinger told Argentine Foreign Minister Admiral Cesar Augusto Guzzetti, amidst vast human rights violations by Argentina’s security forces in June 1976,”If there are things that have to be done, you should do them quickly. But you should get back quickly to normal procedures,” as an example of how FOIA can play a key role in advancing, among other things, human rights causes. Blanton was one of the event’s three keynote speakers, along with Melanie Pustay, Director of the Justice Department’s Office of Information Policy (OIP), and former White House Office of Information and Regulatory Affairs Administrator, Cass Sunstein.
In his speech, video of which begins around the 50’ mark, Blanton notes that as FOIA approaches its 50th birthday this July 4, it is in a Dickens-esque predicament of simultaneously experiencing the best of times and the worst of times. Operation Condor convictions – thanks in no small part to the 900 declassified records the Archive gave the prosecution, many of which provided critical evidence for the proceedings – is one of the many highlights of the FOIA. Lowlights include the Freedom of Information Act’s middling global ranking (a recent poll by Canada’s Center for Law and Democracy ranked FOIA 45 out of 103 transparency laws, in part because the law doesn’t have a public interest harm test built in), and attacks on the statute here at home – by Cass Sunstein and others – who argue that the government is too open.
Sunstein (video begins a round the 6’ mark) promoted the importance of increased output transparency (roughly defined as regulatory information people can use in their daily lives), while arguing that input transparency (roughly defined as policy discussions) is less important, and even potentially harmful. Sunstein remarked that input transparency is “often a bad idea, certainly isn’t a great idea.” Blanton pointed out, however, that Kissinger’s memcons, including the Guzzetti memo, were a prime example of why “input transparency” is so important, and why there ought to be much more of it – not less.
Melanie Pustay (begins around the 4’42’00 mark) repeated the Justice Department’s oft-touted trumped-up claims that the government continues to maintain a high FOIA release rate of over 91% – and has done so in each fiscal year since 2009. This is a misleading figure. As Blanton noted in his 2015 Senate testimony, to calculate that 91% figure the DOJ includes only final processed requests, and the DOJ statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes closer to 60%.
OIP’s insistence on repeating the same, misleading statistics is part of the reason Rep. Jason Chaffetz (R-Utah), chair of the House Committee on Government Oversight and Reform, said Pustay must be living in “la-la-land” if she thought FOIA was being properly implemented during last year’s hearing on “Ensuring Transparency through the Freedom of Information Act.”
Pustay also said that while OIP is participating in FOIAonline, a portal that allows you to submit FOIA requests to all participating agencies and currently has 13 participants, it is not pushing other agencies to join. Pustay pointed to legacy request tracking systems many agencies are already committed to, and problems supporting classified documents, as reasons why agency participation is limited thus far.
This week the National Security Archive has been sharing some especially egregious FOIA horror stories to help celebrate 50 Days of FOIA, a campaign organized by OpenTheGovernment.org to count down the days to the FOIA’s 50th anniversary this July 4 and to draw attention to “meaningful reform legislation that now has the potential to become law by the time the statute turns 50 in less than two months.” To kick the week off, Nate Jones authored a must-read blog recounting the all-too-common tale of a FOIA request that was swallowed up by the referral black hole. In this case, court-mandated status reports gave us a glimpse into what happened to our request: lowlights include referrals to nine different agencies, one of whom couldn’t meet its appeal deadline because “it was having difficulty determining what needed to be reviewed.” Follow Reporters Committee for Freedom of the Press @RCFP next week for their 50 Days of FOIA stories on FOIA resources.
Jason Leopold recently published declassified CIA reports obtained through a FOIA lawsuit that contain new details on the death of Afghan detainee Gul Rahman, who died in November 2002 after being “short shackled” overnight, and “likely” freezing to death – a technique the CIA implemented after flying a Bureau of Prison training team to Afghanistan. Rahman is the “only documented death associated with the CIA’s torture program” and the declassified documents, in addition to containing new information on his death, “make clear that congressional committee leaders on both sides of the aisle were aware as early as January 2003 that the CIA operated an abusive interrogation program that resulted in the death of a detainee, and that the agency ran black site facilities where captives were held incommunicado.”
In April the Bureau of Prisons (BOP) told the ACLU that it had no records in response to the ACLU’s FOIA request for records on BOP officials’ visit to the CIA detention site. 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.
Jason Leopold, Marcy Wheeler, and Ky Henderson recently penned a very worthwhile long read on hundreds of internal National Security Agency (NSA) documents on Edward Snowden and his attempts to raise concerns inside the NSA about its surveillance practices prior to his leak. The 800 pages of documents were obtained through a FOIA lawsuit. As the authors note, perhaps the most remarkable takeaway from “this FOIA release, however, is that the NSA admitted it removed the metadata in emails related to its discussions about Snowden.” Marcy Wheeler at Empty Wheel has more on that here.
The New York appellate court has, for the first time, upheld the NYPD’s use of the Glomar doctrine in response to a records request for records on surveillance on two Muslim men. CJ Ciaramella reported on the significant decision in his latest FOIA Rundown, noting “it is the first time New York courts have considered the Glomar doctrine, which isn’t established in the statutory language of the FOIL or previous state caselaw. From the ruling: ‘In view of the heightened law enforcement and public safety concerns identified in the affidavits of NYPD’s intelligence chief, Glomar responses were appropriate here.’”
The U.S. National Archives has published a proposal in the Federal Register to “add a system of records to its existing inventory of systems subject to the Privacy Act of 1974…In this notice, NARA publishes NARA 45, Insider Threat Program records.” Comments are due by July 8, and the proposed update will become effective on July 18, 2016 unless comments are received.
This week’s #tbt pick is chosen with the Israeli June 7, 1981, destruction of Iraq’s Osirak nuclear reactor in mind. 35 years ago this week Israel targeted Iraq’s Osirak nuclear reactor – nearly a year after Iran did. It’s likely that Iran’s aerial reconnaissance photographs from the 1980 attack, which the Islamic republic shared with Israel, were crucial to the Israeli Air Force’s complete destruction of the reactor on 7 June 1981. Here’s the CIA’s October 1, 1980, National Intelligence Daily that reported on the Iranian attack.
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