Effectively Utilizing Available Tech Would Go a Long Way Preventing “Aneurysm-Inducing” FOIA Frustrations: FRINFORMSUM 7/28/16
Maine Gov. Paul LePage, who vowed in 2010 that his administration would be the “most transparent” in the state’s history, is fighting to keep his work-related, handwritten notes beyond the reach of Maine’s public records law. The governor’s use of handwritten notes is well-known, and last year the Portland Press Herald/Maine Sunday Telegram requested copies of all of them under Maine’s Freedom of Access Act (FOAA) – and only received three. Defending the paltry disclosure, LePage’s staff argues that – in direct opposition to what Maine’s FOAA actually says – “the notes are personal and not public documents that must be saved and accessible to the public.” Maine’s FOAA, however, defines a public record as “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State . . .” LePage also recently issued an anti-texting policy “after it was made public that an employee at the Maine Center for Disease Control and Prevention said she had been ordered by her superiors and LePage appointees to use text messaging as a way to circumvent FOAA requests.”
Ryan Shapiro is suing the Justice Department over the FBI’s intentionally cumbersome FOIA search software, which is designed to fail to find responsive documents. Wired’s Davey Alba has a good summary of how the FBI’s system does this, explaining how Shapiro – by piecing together testimony from federal agents – found that the “FBI’s main records database, the Central Records System, isn’t itself searchable. Agents have to conduct the search on a mirror called the Automated Case Support system via an application called Universal Index to search a card catalog-like database. But this amounts to hunting for relevant documents by relying on the topic of a book alone when the person making the FOIA request is, to extend the library metaphor, looking for a specific title or information contained on a specific page.” The Bureau utilizes the outdated software, which is so old “that it doesn’t even have a graphical user interface,” even though it has another $425 million system, Sentinel, that would allow full-text search.
FOIA shops – and government websites more broadly – are often criticized for employing outdated software – at the taxpayer’s expense – that is behind software routinely used by private sector websites. To help bring the government into the 21st century, the Obama administration launched the Digital Service team – an initiative “that pairs the country’s top technology talent with the best public servants, to improve the usefulness and reliability of the country’s most important digital services.” The service currently has charters with seven different agencies and overwhelmingly positive agency approval ratings.
This begs the question of why the same cannot be done with FOIA. Hopes were high in 2014 when 18f, a highly regarded group of technology innovators at the General Services Administration, hinted that it was being tasked to help build a government-wide FOIA portal. The project, however, did not pan out. It’s unclear (or at least unconfirmed) why, but as 18f notes, a FOIA Task Force comprised of representatives from, among other places, the Department of Justice, oversaw the project. It does not inspire confidence that the DOJ – which a FOIA request proved had lobbied to kill unanimously supported FOIA legislation and ritually defends bad agency FOIA actions in court – was in a position to influence the direction of such an important project.
ProPublica recently published an “aneurysm-inducing” collection of FOIA frustrations to highlight the ways FOIA still needs to improve as the recently-upgraded law turns 50. One ProPublica reporter – Justin Elliott – recounted his frustration upon learning that any request submitted to the Justice Department that is not actually seeking documents from its FOIA office (the Office of Information Policy) is placed in the “complex” track, requiring additional processing time. Jesse Eisinger, for his part, shared a story about a FOIA request he filed with the Securities and Exchange Commission “for all the investigative files from its closed probe of a certain bank.” While Eisinger tried narrowing his request to reduce processing time, his attempts were unsuccessful because the boxes he wanted –which were “stored in a warehouse and all pertained to the investigation into the bank” – weren’t labeled.
The 103-member Chief FOIA Officers Council, co-chaired by DOJ OIP head Melanie Pustay and acting head of the FOIA Ombuds office Nikki Gramian, met for the first time last Friday to discuss implementing a “release to one is a release to all” standard for FOIA disclosures. Journalists have expressed concerns that such a policy – while fulfilling the spirit of the FOIA – would be a disincentive from using the FOIA and ruin the possibility of scoops (although agencies regularly post FOIA logs that could conceivably do the same thing, and a natural follow-through to posting logs would be to post the actual documents).
As the National Security Archive argued in our 2015 audit, “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole… Perhaps the best method that addresses both journalistic and FOIA advocates concerns’ is to require the documents be posted online, but not immediately. Currently, the Department of State posts FOIA’d documents quarterly.”
The Chief FOIA Officers Council, along with the Office of Management and Budget, is charged with “implementing the [release to one, release to all] policy and addressing journalists’ and agencies’ concerns by Jan. 1, 2017.” Journalists will be invited to the next meeting and given the opportunity to voice their opinions in person.
Judge James Pohl – an Army colonel presiding over the Guantanamo military commission of five of the alleged 9/11 planners – has returned “virtually all” of the prosecution’s evidence as inadequate and requiring review. Pohl noted that the prosecution has presented him with approximately 50 percent of the evidence they believe the defense is entitled to. Defense attorney Jay Connell said Pohl’s actions likely indicate the evidence was either over-redacted or “too skimpy.”
U.S. District Court Judge Rudolph Contreras recently denied the State Department’s request for a 27-month extension processing Citizen United’s FOIA request “for emails among four former State officials and individuals at the Clinton Foundation and a consulting firm close to the Clintons, Teneo.” Citing the State Department’s “drop” in resources devoted to FOIA processing since last February, Judge Contreras said “Because these facts imply that Defendant has been ‘lax … in meeting its [FOIA] obligations…with all available resources. …,’ the Court does not find a twenty-seven month extension of time appropriate.” State has maintained in other FOIA cases that because most of its FOIA processing is done by retired foreign service officers, who “are limited by law to working no more than about 1,000 hours per year,” many FOIA processors were forced to take time off.
The Pentagon has removed a clause in its Law of War Manual “suggesting that journalists could be seen as combatants.” In August 2015 The New York Times Editorial Board published a damning rebuke of the 1,176-page Law of War Manual, particularly the manual’s instructions that members of the press may in some cases be categorized as “unprivileged belligerents.” The Board called on the secretary of defense to revise its guidance on journalists; the revision now reads “in general, journalists are civilians and are protected as such under the law of war.”
Daniel Meyer, recently the “Obama administration’s top official overseeing how intelligence agencies handle whistleblower retaliation claims,” has filed his own retaliation complaint with the Merit Systems Protection Board (after the Office of Special Counsel rejected his claims in April). Meyer accuses his DOD bosses of removing damning conclusions from a DOD inspector general report on the making of “Zero Dark Thirty” – namely that Leon Panetta leaked classified information to the makers of the film. Meyer says that the “conclusion was later removed after then-acting Inspector General Lynne Halbrooks met privately with Panetta.” The National Security Archive posted the “Zero Dark Thirty” file, a collection of all the available official documents on the mission to kill Osama bin Laden, in an effort to balance the Obama administration’s decision to grant the film’s producers exclusive and unprecedented access to classified information about the operation.
US atomic tests in Bikini Atoll in July 1946 staged by a joint Army-Navy task force were the first atomic explosions since the bombings of Japan a year earlier. Documents posted by the National Security Archive about “Operation Crossroads” shed light on these events as do galleries of declassified videos and photographs. Of the more eyebrow-raising revelations is that the second test – Baker – contaminated nearby test ships with radioactive mist, making them “radioactive stoves, and would have burned all living things aboard with invisible and painless but deadly radiation.” (Footage of the Baker test was also used by Stanley Kubrick in the closing scenes of Dr. Strangelove.) International observers were invited to watch the tests; Soviets interpreted the display as a threat, responding that they were “not afraid” and that they had “wonderful planes” that could easily bomb US cities.
This week’s #tbt pick is chosen with U.S. District Judge Katherine Forrest’s recent signaling that she would not ease convicted spy Jonathan Pollard’s parole requirements, which are “preventing him from taking a financial industry job,” in mind. This week’s #tbt pick is a 2012 National Security Archive posting on Pollard’s case, including the 1987 CIA damage assessment, which was released through the Mandatory Declassification Review process by the Interagency Security Classification Appeals Panel. The assessment included new details on the specific subjects and documents sought by Pollard’s Israeli handlers, such as Syrian drones and central communications, Egyptian missile programs, and Soviet air defenses.
Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.
What Pressing Issues Will the FOIA Advisory Committee Tackle for its Second Term? FRINFORMSOM 7/21/16
The FOIA Advisory Committee’s second term gets underway this morning at the National Archives and Records Administration. The first term’s most notable deliverable was its vote to update outdated Office of Management and Budget fee guidance – written before the internet and missing a key word. A recent blog from the Archivist of the United States notes that for its second term the Committee – at the direction of the White House – will “look broadly at the challenges that agency FOIA programs will face in light of an ever-increasing volume of electronic records, and chart a course for how FOIA should operate in the future.” This directive gives the Committee a springboard for addressing some of the thorniest real-world FOIA issues agencies face, and an opportunity to provide concrete, actionable steps agencies can take to improve their FOIA shops.
The Justice Department has issued new guidance on agency response letters resulting from improvements codified by the FOIA Improvement Act. The guidance highlights that when issuing adverse determinations, agencies must provide requesters no less than 90 days to respond. It also emphasizes that agencies must advertise the availability of both FOIA Public Liaisons and the Office of Government Information Services as requester resources, including when an agency’s “unusual circumstance” will delay the processing of a FOIA request. The guidance fails, however, to remind agencies that “unusual circumstance” delays are not delays that result “from a predictable agency workload of requests, ” or that agencies cannot charge most FOIA fees if they do not meet the processing time limits (before the FOIA Improvement Act’s passage, agencies claimed they could still charge fees for late requests by deeming them “unusual”).
The American Society of Access Professionals held its National Training Conference this week in Arlington, VA. Expert panelists included the National Security Archive’s Nate Jones and Dr. Robert Wampler, MuckRock founder Michael Morisy, USAToday’s Brad Heath, FOIA litigators Mark Zaid and Scott Hodes, and FOIA specialists from across the federal government. In his keynote address, Judge Royce Lamberth hailed FOIA processors as the heroes of government accountability, a mentality that should be cultivated and reinforced. The conference was a good reminder of 1) the importance of professional, two-way dialogues between requesters and FOIA processors, and 2) that FOIA processors are negatively affected by bad agency decisions – from outdated FOIA processing software to antagonistic agency cultures – in many of the same ways requesters are (Mark Zaid pointed out that many problems heaped on the FOIA office come from managerial/non-FOIA staff).
The New York Times is suing the Defense Department under the FOIA “to force the Pentagon to release full copies of more than a thousand pages of work-related emails Defense Secretary Ash Carter sent and received from his personal account.” Last December Carter acknowledged that he used personal email for government business for the “first few months” of his tenure as Defense Secretary, which began in February 2015. News that Secretary of State Clinton used a personal email address broke in March 2015, meaning Carter continued relying on personal email to conduct government business while Clinton was under intense scrutiny for doing so while Secretary of State. The Defense Department responded to the Times’ initial lawsuit by releasing 1,300 heavily-redacted emails sent from Carter’s personal account; Pentagon spokesman Gordon Trowbridge maintains that “there was no classified material in Carter’s personal emails.” After Campaign for Accountability called for the DOD’s Inspector General to investigate, the IG sent a response letter saying that it would not investigate — only to later retract and say the letter was sent in error and no final decision had been made.
Senator Patrick Leahy is demanding that the restrictions to the Privacy and Civil Liberties Oversight Board contained in the Senate Intelligence Committee’s version of the FY2017 Intelligence Authorization Act be withdrawn. Steve Aftergood noted earlier this year 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. Leahy’s letter to the Senate Intelligence Committee called the proposed changes “‘completely unacceptable’ and ‘misguided.’ [Leahy] deplored what he portrayed as an emerging pattern of efforts by the intelligence panels to undermine the oversight board’s independence and authority. He also said any proposed changes to the board should go through the Judiciary Committee.”
If successful, this would be the second curtailing of PCLOB’s mandate in as many years. Last year 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.”
Congress has finally released the controversial 28-pages of the June 2003 report into 9/11 that detail “possible links” between the hijackers and Saudi officials – and the intelligence community’s Saudi Arabia blind spot. The pages describe “an ‘unacceptable’ lack of awareness by both the CIA and the FBI on Saudi activities inside the United States,” going on to note: “Only recently, and at least in part due to the Joint Inquiry’s focus on this issue, did the FBI and CIA establish a working group to address the Saudi issue.” The congressional document “was declassified by the Intelligence Community prior to its public release.”
The release of the “28 pages” does not mean that no other documents related to 9/11 are being senselessly withheld. Former Senator Bob Graham, who has long fought for the pages’ release, notes that the FBI continues to conceal important aspects of its investigation in Florida. 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.) The 9/11 Commission’s interviews with Presidents Bush and Clinton are also still secret, as are interviews with Vice President Cheney.
“Even though the government denied at least part of more than 345,000 requests [in FY 2015], it only received 14,639 administrative appeals.” This statistic is part of the reason why MuckRock is launching a database of FOIA exemptions – what founder Michael Morisy hopes will be a “Google for FOIA rejections” that will help requesters understand why their request was denied, and how they can fight it. Morisy says that the goal is to chart how individual exemptions are used, and the real-world negative impacts of the exemption. MuckRock hopes to launch the database by the end of the year.
Managing editor at the New York Times, Sergio Florez, filed FOIA requests with both the CIA and the FBI on his father, Cuban diplomat and eventual defector, Dr. Armando J. Florez. The CIA issued a Glomar denial, prompting the younger Florez to appeal, and eventually sue. The district court upheld the CIA’s Glomar denial. While Florez appealed the ruling, the FBI released documents in response to Florez’s request, prompting the Second Circuit to remand the case back to the lower court; the Second Circuit found “that the FBI disclosures are relevant to the issues raised in this appeal and that those documents should be considered in this case.” In her dissent, however, Judge Debra Ann Livingston argued that the FBI documents “disclose little regarding Dr. Florez and say nothing at all about any connection to the CIA” and “are simply not helpful in assessing the logic and plausibility” of the CIA’s Glomar.
Buzzfeed recently published documents released in response to its FOIA lawsuit against the Department of Defense for information on detention practices in Afghanistan. Specifically, Buzzfeed published documents on the use of detention techniques at Bagram Air Base from January 2010 through April 2011, which highlight how the “separation” technique (solitary confinement) thrived there (and presumably at other facilities across Afghanistan and in Iraq). The documents note, among other things, that “In many cases, the prisoners were already being kept in ‘segregation’ for days or even weeks before interrogators formally asked for permission to apply separation,” and “Only once did military lawyers and top brass deny a request to apply separation. Indeed, they approved requests even in cases where military lawyers expressed reservations.”
National Security Agency director Michael Rodgers announced that Cyber Mission Force troops, a dedicated cyber unit that “will eventually contain 6,200 people split into 133 teams,” will be operational by fall. Rogers said that “He said he’s trying to build the force, made up of both military personnel and civilians, even as his agency faces budget cuts. He said it’ll be fully capable by Sept. 30, 2018.” Rogers went on to note that “he wants cyber to be integrated into the military and become a tool available to policymakers and operational commanders, as long as it’s used legally.”
This week’s #tbt pick is the 2012 posting, “Nuclear Terrorism: How Big a Threat?” The posting contains 40 declassified documents from US and other government agencies concerning assorted aspects of the current US nuclear counterterrorism effort.
Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.
The 6th Circuit Court of Appeals has ruled en banc against the Detroit Free Press and against the status quo, determining that federal booking photos and mugshots taken by the US Marshals no longer need to be released through FOIA. The pernicious ruling overrules a previous 6th Circuit decision in favor or releasing mugshots under FOIA, and forces transparency advocates to spend limited staff and resources to fight off government efforts to shrink the current transparency landscape, rather than fight to expand the public’s right to know. Adam Marshall of the Reporters Committee for the Freedom of the Press wrote eloquently last year why the secrecy surrounding federal booking photos and mugshots is troubling, noting that while there are “no privacy rights implicated by releasing photos of persons who have been arrested, indicted, and appeared in open court… there is a powerful interest in ensuring the criminal justice system remains open to the public.” Marshall’s piece, with an important history of the difficulties obtaining federal mugshots even under the FOIA prior to today’s ruling (including the need to file the FOIA from Kentucky, Michigan, Ohio, or Tennessee), is available here.
C-SPAN’s American History TV recently visited the National Security Archive to talk FOIA history with our director, Tom Blanton. The topics covered in the informative and entertaining 11-minute video range from the signing of the Freedom of Information Act in 1966 (thanks in no small part to the work done by President Johnson’s press secretary, Bill Moyers) to FOIA’s important role correcting the Flint water contamination crisis and Marines being issued defective bulletproof vests. In both instances FOIA helped draw sustained attention to the issues, prompting the Flint government to switch water suppliers and the DOD to issue a recall of the life-threatening vests, respectively.
Blanton also highlighted the important role commercial entities played in paving the way for the modern Freedom of Information Act. Prior to the 1800s access to government records was only granted after judicial proceedings that proved a requester’s “need to know” what was in the documents, rather than a “right to know.” During the 19th century, however, real estate title insurance companies argued repeatedly and effectively that courthouse records, funded by taxpayer dollars, should be public records, laying the groundwork for public availability of courthouse records and other government documents.
Earlier this week the Senate Judiciary Committee held its hearing on “FOIA at 50: Has the Sunshine Law’s Promise Been Fulfilled?” Key takeaways from the hearing include the need for more proactive posting, posting FOIA responses online for all to see, and for agencies to take advantage of available technology to improve their FOIA processing rather than sticking with proprietary software that hampers the requester (and FOIA processor) experience. Witnesses included Sunshine in Government Initiative director Rick Blum, the Office of Government Information Services founding director Miriam Nisbet, University of Arizona professor and Society of Professional Journalists chair David Cuillier, and Professor Margaret Kwoka; all of their written testimonies are available here.
In a recent War on the Rocks article, Dean of American University’s School of International Service, James Goldgeier, discusses the promises that were made (or not) by American leaders to the Soviet, and later Russian, leadership about the eastward expansion of NATO after the dissolution of the USSR – and how a FOIA release sheds light on a key moment in the debate. In February 1990 US Secretary of State James Baker told Soviet leader Mikhail Gorbachev, discussing the terms of German unification, that “there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” Goldgeier writes that an October 1993 meeting between US Secretary of State Warren Christopher seemed to continue in that vein, with Christopher telling Russian President Boris Yeltsin during the October meeting that the US would not support new members joining NATO. A year later, however, NATO enlargement proceedings began.
Goldgeier successfully pried loose the memorandum of conversation of the October meeting with a FOIA request, “which sheds much more light on what was said in October 1993 (and in what order) than do the memoirs of Christopher and Clinton’s chief Russia hand, Strobe Talbott.” Goldgeier’s analysis of the memcon confirms that the document “makes clear why Yeltsin later felt betrayed. The elements of the Christopher and Talbott recitations are there, but not in quite the same order as implied, and in ways that are fairly misleading.”
Marshall Project investigating and New York Times reporting are drawing attention to the for-profit prison transport service – vans that carry “tens of thousands of fugitives and suspects — many of whom have not been convicted of a crime – locally and across state lines.” The Marshall Project filed FOIA requests, obtained court documents, and conducted countless interviews to document “a pattern of prisoner abuse and neglect in an industry that operates with almost no oversight.” Some of the more alarming trends uncovered include extremely limited training for guards, sexual assault, and sporadic monitoring by the Department of Transportation (DOT). The Marshall Project found that DOT “monitoring is infrequent, and companies are typically given advance notice of an audit. Between 2000 and 2015, records indicate, the department issued fines 20 times, most below $10,000.”
A Top Secret//SI//REL USA, FVEY National Security Agency briefing on Cyber Threats and Special Source Operations (SSOs) is one of the highlights from this week’s Cyber Vault update (updated every Wednesday). The briefing discusses the surveillance programs the National Security Agency (NSA) participates in, with a breakdown of who the NSA partners with, what legal authority authorizes each program, and what various partner constraints are.
PDF page 14 provides a list of “access portfolios” the NSA maintains by who partners in the program with the agency (either unilateral, foreign, or corporate). Unilateral programs are programs in which access is enabled by US partners; the list of unilateral programs include Operations Mystic, Rampart-I/X, Rampart-M, Rampart-T, and one redacted program. Foreign access portfolios – those enabled by 2nd and 3rd parties – include Rampart-A and Windstop, while corporate access portfolios, in which access is enabled by telecom providers, include Blarney, Fairview, Stormbrew, Prism, and Oakstar.
The document also includes a slide (PDF page 17) detailing what legal authorities authorize various surveillance programs. According to the briefing: EO 12333 authorizes Rampart-A, Rampart-I/X, Rampart-M, Rampart-T, DGO, Windstop, Oakstar, Mystic, and one redacted program; FISA authorizes Blarney; Transit authorities authorize Stormbrew and Fairview; and FAA-702 authorizes Stormbrew, Fairview, Prism, and Blarney.
The FBI alleged in a legal brief last week that its network investigative techniques (NIT) hacking tool is not malware because it’s not “malicious.” The author of the brief functionally argues that techniques used to “break into the computers of suspected criminals” should not be considered malware because the breach is done with good intentions. The CATO Institute’s Julian Sanchez uncovered the brief in connection to a case on Operation Playpen, in which the FBI broke into a child pornography website by exploiting a flaw in the TOR browser. More on the creepily named Operation Playpen here.
This week’s #tbt pick is chosen with Washington Nationals’ star catcher Wilson Ramos’ first appearance in the MLB All Star game in mind, and is an April 2016 blog by Archive FOIA Project Director Nate Jones on the State Department’s declassification of a cable on the November 9, 2011, kidnapping and November 12 rescue of Ramos in response to a National Security Archive Freedom of Information Act request. According to the previously “Secret/NOFORN” cable composed by the US Embassy in Caracas, Ramos’s rescue “was the result of good police work” by Venezuela’s Corps of Scientific, Penal and Criminal Investigative Corps (CICPC).
Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.
By Lauren Harper and Sarah Chaney Reichenbach
In June 2012 Jonathan Lalley, Special Assistant to the State Department spokesperson, sent out an email alert that National Security Archive fellow and author of Fighting for Darfur: Public Action and the Struggle to Stop Genocide, Rebecca Hamilton, was “fishing around” for information on the existence of a classified annex to the 2009 Sudan Policy Review. The review, undertaken to guide the Obama administration’s strategy as the south of Sudan headed toward a secession referendum, had faced delays and bureaucratic infighting. Lalley said that if Hamilton “comes to you direct asking about an alleged classified annex to the Sudan strategy that resulted from the 2009 review process, please know that both PA [Public Affairs] and NSS [national security staff] have already responded ‘we have nothing for you.’ Please flag for us if she reaches out directly to S/USSES.”
Hamilton had been seeking clarification on contradictory statements about the existence of the annex for a 2012 Reuters investigation on the formation of US policy toward what was, by then, a newly independent South Sudan. Back in October 2009 when the State Department had released an outline of its Sudan Policy Review, then-Secretary of State Hillary Clinton told reporters there was “a classified annex to our strategy” while Maj. Gen. J. Scott Gration testified before the House or Representatives in December 2009 that there “is no annex.” But a recently declassified working draft of the strategy, “US Sudan Interagency Policy Review Strategy Paper,” dated May 2009, does have a classified annex entitled “Incentives and Disincentives,” which seems to vindicate Clinton’s claims that the annex, at least at one point, existed.
The draft was among a number of documents that were recently released to the Archive’s Genocide Documentation Project in response to a FOIA request Hamilton filed with the State Department in 2010. While the contents of the annex were redacted in the released document, other parts of the document show that the US government was prepared to “unwind sanctions and restrictive legislation” if the government of Sudan complied with the Comprehensive Peace Agreement (CPA) it signed with the Sudan People’s Liberation Movement in 2005.
The draft lays out a set of assumptions undergirding the development of the US government’s Sudan policy. Among them is the assertion that while implementation of the CPA was necessary, its implementation alone would not be sufficient to guarantee peace. This assumption seems to be reflected in the draft’s ambitious “national engagement strategy” that “supports political stability, enhances internal security, improves democratic governance, and promotes economic development for all of Sudan.” The proposal, fleshed out in detail in the May 2009 draft, is absent from the final version released in October 2009.
The draft also assumes – correctly as it turns out – the eventual secession of South Sudan in 2011, and notes that an independent South Sudan “would require a substantially increased nation-building effort resulting in a high degree of US commitment and leadership.” In hindsight, the observation is particularly poignant; the 2013 outbreak of civil war in South Sudan, less than two years after it gained independence, has killed an estimated 50,000 people and left 1.6 million more displaced.
Reviewing the declassified material, Hamilton notes that the documents “reveal the thorny debates that bogged down the review and left the US government’s Sudan strategy in limbo for the first 18 months of the Obama administration.”
The documents also highlight the frustration felt by US officials working on Sudan policy as the country headed toward the secession referendum. In a set of email exchanges, the head of the U.S. Embassy in Khartoum, Alberto Fernandez, wrote that “what Khartoum and the Sudan effort need is not necessarily more bodies but more of the right kind of people and those are often in short supply.” He wrote the email 19 days before he left the post, noting that “with my departure in May, there will be NO Arabic speaking FSOs at post.”
The same set of email exchanges also shows at least one official’s desire to stop using the term “genocide” in the policy review. In an April 27, 2009, email one official writes:
“[T]he use of the word genocide in this document seems out of date and inaccurate. Given current realities on the ground, it could simply say ‘definitive end to the conflict.’”
Then-Secretary of State Colin Powell declared Darfur a genocide before the Senate Foreign Relations Committee on September 9, 2004, saying “When we reviewed the evidence compiled by our team, along with other information available to the State Department, we concluded that genocide has been committed in Darfur and that the Government of Sudan and the jinjaweid bear responsibility — and genocide may still be occurring.”
The 2009 desire to stop using the word “genocide” draws parallels to Rwanda and the Clinton administration’s refusal to label the mass killings in Rwanda as a genocide in 1994 despite overwhelming evidence; a May 1, 1994, State Department document explicitly warns: “Be careful … Genocide finding could commit U.S.G. to actually ‘do something.'” In this case however, the word genocide ended up in the final Policy Review, a result that Hamilton suggests was the consequence of a vocal constituency of US citizens who pushed to government officials to keep using the word.
The State Department deserves credit for releasing the documents, considering the June 2012 email adds to a growing list of examples of Hillary Clinton’s Department of State scrutinizing politically sensitive documents requested under the FOIA.
The release of Lalley’s “fishing around” email, while mildly embarrassing, is in the State Department’s best interest as it attempts to rebuild public trust and meet its requirements under the FOIA in the wake of the Hillary Clinton’s email fiasco. The release of the draft Policy Review six years later begs new questions on the evolution of US policy towards Sudan and South Sudan, and the public unavailability of this information at the time.
The FBI announced this week that it would not recommend criminal charges against Hillary Clinton for her handling of classified material as secretary of state. The decision was made on the grounds that Clinton did not willfully mishandle classified information by maintaining a personal email and server. The Clinton email fiasco has brought overclassification to the fore, and the National Security Archive has long argued that too much information gets classified and classification decisions are too often senseless. We’ve seen different agencies redact different portions of the same document, we’ve seen the same agency redact different portions of the same document, and we’ve even seen the same reviewer redact different portions of the same document a mere 10 days apart.
The investigation of Hillary Clinton’s personal email use through the lens of classification guidance has, however, overshadowed that Clinton’s email setup kept her records out of reach of FOIA requests, broke the Federal Records Act (36 CFR 1263.22), and went against NARA guidance on email management (NARA Bulletin 2011-03).
But Clinton can bolster her transparency credentials in the wake of the scandal and FBI Director Comey’s rebuke by building off the FOIA reform legislation signed into law by President Obama on June 30 – the FOIA Improvement Act of 2016.
The Washington Post Editorial Board recently noted that the bill signing, which roughly coincided with FOIA’s 50th birthday, codifies several important improvements that will help ensure FOIA “remains a vital tool for keeping government open and honest.” Among the most important improvements are a 25-year sunset for the “wildly misused” FOIA exemption (b)(5), codification of a presumption of disclosure, and a requirement that agencies update their FOIA regulations within 180 days of the passage of the bill.
The bill leaves room for improvement, however, providing Clinton – or whoever succeeds President Obama – a much needed opportunity to show how she will promote transparency. Two key ways Clinton could commit to improving transparency and FOIA is to enact a public interest balancing test for each exemption an agency wishes to invoke, and establish a government commission or mechanism which can overturn bad agency FOIA decisions (like the Interagency Security Classification Appeals Panel in the Mandatory Declassification Review process). These steps would also help the FOIA’s middling global ranking compared to other transparency laws (Canada’s Center for Law and Democracy ranked the US FOIA 46 out of 103 transparency laws in a recent poll, between Tunisia and Trinidad and Tobago.)
The DC Court of Appeals ruled this week that private account emails can sometimes be considered government records subject to FOIA. The ruling focused on Office of Science and Technology Policy science adviser John Holdren and an account he “kept on a server at the non-profit Woods Hole Research Center in Massachusetts.” Two of the three appeals court judges wrote, “If a department head can deprive the citizens of their right to know what his department is up to by the simple expedient of maintaining his departmental emails on an account in another domain, that purpose is hardly served.”
The Department of Justice Office of Information Policy recently released its report on the proactive disclosure pilot assessment. Archive FOIA Project Director Nate Jones tweeted the biggest takeaways from the report, namely that if agencies like the Air Force, the National Archives, and the Environmental Protection Agency can employ technologies that automatically OCR and post FOIA responses into a repository, meaning that FOIA staff don’t need to spend any additional time posting FOIA-processed documents, why can’t all agencies use such efficient software to automatically post documents?
The OIP report, unfortunately, did not take the opportunity to dispel the 508 “red herring.” Section 508 requires agencies ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts – and has been in effect since 1998. Yet agencies routinely argue that making documents 508 compliant is too burdensome – even though agencies including the Department of State and all the agencies that participate in FOIAonline , which OIP participates in – routinely demonstrate otherwise, regularly posting their records online and in full compliance with Section 508. OIP missed an opportunity to take the lead and challenge other government agencies to meet the same standard it adheres to.
British investigators have released the results of a seven-year inquiry into Britain’s role, under Tony Blair’s leadership, in the 2003 invasion of Iraq. The Washington Post notes, “The report describes British intelligence painting a flawed picture of Iraqi military capacity, with agencies never doubting the existence of weapons of mass destruction.” The report also faults Blair’s government for presenting Saddam Hussein’s threat to Britain with a “certainty that was not justified,” and ignoring warnings that invading Iraq could grow the threat of Islamic extremism.
These findings square with documents posted by the National Security Archive back in 2010, which show that for nearly a year before the 2003 invasion of Iraq that the British government collaborated closely with the George W. Bush administration to produce a far starker picture of the threat from Saddam Hussein and his weapons of mass destruction than was justified by intelligence at the time.
The documents show, among other things, that:
- From early 2002 both governments were seeking regime change, but Prime Minister Blair and his officials were very conscious of the need to make a case for war, based on claims about Iraqi WMDs.
- From March 2002 – the very beginning of the process – the US and UK administrations were concerned about maintaining consistency in their claims about Iraqi weapons, often at the cost of accuracy. In the spring of 2002 the two countries began to produce in parallel the white papers on Iraq’s weapons of mass destruction that they published that fall. At least two drafts of the respective white papers were exchanged from either side in order to avoid providing grist for “opponents of action.”
- Officials working on the parallel papers took part in a number of secure video conferences to avoid inconsistencies between the documents. Both sides accelerated the drafting of their white papers in September 2002 as part of a coordinated propaganda effort.
The National Security Archive’s Nuclear Vault recently posted photographs and videos of Operation Crossroads’ “Able” test, which took place seventy years ago this month. Operation Crossroads was a joint US Army-Navy task force that attempted to measure the effects of atomic explosions on warships and other military targets by staging two atomic weapons tests at Bikini atoll in the Marshall Islands. The first test, Able, took place on 1 July 1946, and “involved an air burst directly above the assembled ships… The bomb missed its target by several thousand feet, destroying inadvertently one of the ships carrying measuring instruments. The error created a storm of criticism, but it was never fully explained, although the poor ballistics of ‘Fat Man’ were probably a factor.” The second test, Baker, took place on 25 July 1946 and was, according to Nuclear Vault director Dr. William Burr, “the most dangerous and spectacular of the two, producing iconic images of nuclear explosions. A third test was scheduled, but canceled.”
This week’s #tbt pick is chosen with The New York Times Sunday Magazine’s July 3rd profile of Fredy Peccerelli – Guatemala’s foremost forensic anthropologist and longtime partner of the National Security Archive’s Guatemala Documentation Project – in mind. This week’s #tbt pick is the Archive’s 2011 posting on the Diario Militar case and the discovery – with Peccerelli’s help – of two of Guatemala’s death squad victims in a mass grave. The remains belonged to Amancio Samuel Villatoro and Sergio Saúl Linares Morales.
Fredy Peccerelli – Guatemala’s foremost forensic anthropologist and longtime partner of the National Security Archive’s Guatemala Documentation Project – is profiled in The New York Times Sunday Magazine in an article that will run on Sunday, July 3.
“The Secrets in Guatemala’s Bones,” by Maggie Jones, traces the arc of Fredy’s early training in the art of forensic anthropology by some of the greats in the field – including the late Clyde Snow, and Karen Ramey Burns – to his extraordinary work as director of the Guatemalan Forensic Anthropology Foundation (FAFG). Under Fredy’s leadership, FAFG has located and exhumed thousands of bodies of the victims of Guatemala’s 36-year conflict, bringing closure and consolation to families of the massacred and disappeared, as well as vital evidence of human rights crimes to courtrooms.
In 2012, Fredy Peccerelli and the Archive’s Kate Doyle were jointly awarded the ALBA / Puffin Foundation Award for Human Rights Activism in recognition of their shared work in Guatemala.
To read more about the National Security Archive’s collaboration with FAFG in the Diario Militar case, visit the Archive’s posting, “Remains of Two of Guatemala’s Death Squad Diary Victims Found in Mass Grave.”
FBI Tells Orlando Law Enforcement Not to Respond to Records Requests as FOIA Turns 50: A Supersized FRINFORMSUM 6/30/2016
The Freedom of Information Act turns 50 on July 4, and the President will likely sign meaningful FOIA reform into law on Independence Day. To celebrate the occasion, we are highlighting 50 of this year’s biggest headlines made possible by FOIA. Did you know that FOIA showed that federal marshals inappropriately used classification labels to hide controversial cell phone surveillance practices? Or that FOIA revealed that the Postal Service’s surveillance program, mail covers, failed to follow key safeguards? These stories and dozens more can be found at the National Security Archive.
Looking ahead, the Sunlight Foundation’s Alex Howard has seven ideas how to build on the impending FOIA reforms that won’t (for the most part) require additional legislation. These ideas include encouraging FOIA processors to pick up the phone and contact requesters, better FOIA training, and asking for requester feedback. In 2015 the FOIA Advisory Committee distributed an important fee survey – but only to FOIA processors; according to the Committee, “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public. This prompted the National Security Archive and the Project on Government Oversight to distribute our own, similar survey to FOIA requesters to provide a more balanced view. While bureaucratic red tape is a real obstacle, this is the kind of requester data that the government should actively be collecting and analyzing.
CJ Ciaramella has a good piece on Congressman John Moss, the father of the FOIA. Among other quotables Ciaramella notes, “By the mid-1960s, Moss had been holding hearings for more than a decade about government opacity. All told, 27 federal agencies testified on his proposed transparency legislation, all of them in opposition. The Department of Justice said the FOIA would be unconstitutional — that it violated the separation of powers. Yet by 1966, Moss had acquired a critical mass of support for the FOIA among liberal Democrats and Republicans eager to needle the Johnson administration, such as a young Republican named Donald Rumsfeld, who co-sponsored the bill.”
Visit the National Security Archive’s FOIA-at-50 posting for a collection of the Archive’s seminal postings on FOIA’s history.
The FOIA ombuds, the Office of Government Information Services, posted a good blog this week highlighting the State Department’s recent efforts to issue “still interested” letters in accordance with Justice Department guidance. The guidance requires agencies, among other things, to give requesters at least 30 days to respond to the letter before closing a request. OGIS contacted the State Department in May after the National Security Archive’s Nate Jones posted on social media that the State Department sent him a “still interested” letter that only gave him 15 days to respond. It is to OGIS’s credit that they confronted the State Department about its failure to comply with DOJ guidance and it is to the State Department’s credit that it has changed its policy to give requesters at least 45 days to answer a “still interested” letter. The fact remains, however, that nothing in the FOIA statute grants agencies the authority to administratively close a request in such a fashion.
The FBI is telling the Orlando law enforcement agencies that responded to the Pulse nightclub shooting not to respond to records requests on the massacre, and to “immediately notify the FBI of any requests your agency received.” The FBI also recently denied the Orlando Sentinel’s FOIA request for information on the shooting.
This isn’t the first time the FBI has tried to co-opt Florida’s strong public records law. In 2012 the FBI demanded that the University of South Florida (USF) “immediately return copies of e-mails from one of its agents” concerning disgraced associate professor Dajin Peng. The agent, Dianne Mercurio, had been in contact with Peng since 2009, encouraging him to spy on connections Peng had high within Chinese intelligence circles, and leveraged Peng’s tenuous position at USF, where he was being investigated for falsifying expense accounts, making inappropriate advances towards female colleagues, and keeping explicit material on a USF computer, to compel him to keep spying. Fortunately, USF followed Florida’s open government law and released Mercurio’s e-mails in response to a request from Bloomberg News, rebuffing (in this case) the FBI’s efforts to keep the records secret.
A federal judge ruled that the Drug Enforcement Administration’s explanation for withholding the names of companies and federal agencies involved in Operation Hemisphere from an EPIC FOIA lawsuit was “legally insufficient,” and ordered the DEA to either provide the records or specific reasons for withholding them. The New York Times reported in 2013 that under Operation Hemisphere the government pays AT&T, the only company identified to date as a participant, for access to an enormous database “that contains the records of decades of Americans’ phone calls” and “covers every call that passes through an AT&T switch — not just those made by AT&T customers.” Approximately four billion call records are added to the AT&T database daily, and the records include information on the locations of callers. The scale and longevity (the AT&T records go back to 1987) of Operation Hemisphere “appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act.” Courthouse New Service notes that “The judge also rejected the DEA’s argument that knowing which federal agencies used Hemisphere would help criminals avoid detection via the program.”
The American Civil Liberties Union has filed a petition in the DC Circuit Court of Appeals, asking it to rehear its decision denying public access to the Senate Intelligence Committee’s full Torture Report. On May 13, 2016, the appeals court affirmed a lower court ruling that the report “is a congressionally generated and controlled document that is not subject to disclosure under FOIA.” The ACLU petition notes the Torture Report “is a uniquely important agency record” of exceptional importance that warrants en banc review.
U.S. District Court Judge Richard Leon told the State Department that “There’s no way I’m ever going to grant you an extension to mid-October” to release FOIA documents to the AP on “a deal the agency cut with defense contractor BAE Systems while Hillary Clinton was secretary of state.” The initial court-imposed deadline to complete the processing of records related to “a consent decree BAE reached in 2011 settling civil claims over violations of U.S. arms export control laws and regulations” was April 4, later extended to June 13 – although the State Department failed to meet either deadline. Josh Gerstein reports that, “Given the glacial pace of many of the roughly 100 FOIA suits pending against State in the wake of the Clinton email flap, Leon’s schedule for resolving the case seems wildly ambitious.”
FOIA requests to the Department of Housing and Urban Development, along with housing data and interviews with borrowers, show that some of the largest private equity companies that bought billions of dollars of mortgages at steep discounts from HUD during the housing crisis are aggressively pushing homeowners into foreclosure with little federal oversight. A long-form New York Times piece shows that some big private equity companies are making many of the same mistakes banks made in the lead-up to the housing crisis, and that “much of this [private equity] investment has not benefited poor neighborhoods. Banks are expected, under the Community Reinvestment Act, to help meet the credit needs of low-income neighborhoods in areas they serve. Private equity has no such obligation.” The exposé also highlights that at least one private equity company, Nationwide, functions as a “mortgage bill collector, auction house for foreclosed homes and lender to new borrowers. By working every angle, and collecting fees at each step, the company faces potential conflicts of interest that enable it to make money on what is otherwise a costly foreclosure process.”
A 2013 New York State Department inspector general report on the athletic commission – “an odd little agency charged with the considerable responsibility of ensuring the integrity of professional boxing” – released under the FOIA improperly withheld factual information and final agency decisions. The inappropriate withholdings were uncovered when the FOIA release was compared to a leaked version of the same IG report, and paints a picture of a “profoundly dysfunctional agency” that struggles enforcing internal controls, promoting safety, and has “blurred lines of propriety.” One of the passages wrongly redacted from the report summarizes that “It is clear that many of the problems and shortcomings identified in past investigations and audits of the State Athletic Commission continue to exist today.” One day after the report was issued, Russian heavyweight boxer Magomed Abdusalamov was left speechless and partially paralyzed from a televised match, after which agency officials simply instructed his team to find a taxi to take him to the hospital.
Jason Leopold recently reported that a proposed amendment to the annual intelligence spending bill would force the intelligence community (namely the CIA) to account for its relationship with the entertainment industry. The CIA was involved in 22 entertainment projects between 2006 and 2011, most notably the films Zero Dark Thirty and Argo, and an episode of Top Chef. Leopold notes, “In the case of Zero Dark Thirty, writer and producer Mark Boal and Katherine Bigelow gave CIA officers involved in the operation that resulted in the killing of Osama bin Laden gifts including dinners, fake pearl earrings, a bottle of tequila, and tickets to a Prada fashion show. The filmmakers, in turn, got access.” (The National Security Archive compiled all of the available official documents on the mission to kill bin Laden in 2013 to provide balance to the Hollywood/CIA record). The amendment states clearly, however, that “Neither the production of entertainment nor the self-promotion of Intelligence Community entities are legitimate purposes for these engagements.”
District Court of D.C. Judge Royce C. Lamberth will address the American Society of Access Processionals 9th annual training conference this July. In 2015 Lamberth, who has a strong track-record on FOIA, railed against the Environmental Protection Agency’s (EPA) FOIA performance in connection with a FOIA lawsuit seeking “documents covering communications with groups and individuals concerning potential EPA regulations.” Earlier this year he also granted Judicial Watch discovery in pursuit of “details about how Hillary Clinton’s private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.” Lamberth cited the government’s wrongdoing and bad faith in his ruling, and chastised the “constantly shifting admissions by the Government and the former government officials.” The Archive’s Robert Wampler will also be at the training conference, co-presenting the“Deciphering Exemption 1” breakout session on Wednesday, July 20 from 9:15-10:30 am with Paul Jacobsmeyer from the DOD’s FOIA Office.
This week’s #tbt pick is chosen in honor of FOIA’s upcoming anniversary and is the text of Bill Moyers’ keynote address at the National Security Archive’s 20th anniversary party, “In the Kingdom of the Half-Blind.” Moyers was the White House Press Secretary when LBJ grudgingly signed the FOIA into law in 1966, although the momentous event doesn’t even appear in LBJ’s daily journal – see below.