Ongoing Government-wide Problems Mishandling Classified Material in this Week’s FRINFORMSUM 2/4/2016
Contractors responsible for running the Y-12 National Security Complex in Tennessee grossly mishandled classified information for more than 20 years, throwing away documents concerning nuclear explosive materials and national defense secrets in an open landfill. A must-read report by the Center for Public Integrity shows that not only were the classified documents routinely mishandled, “The company [Babcock & Wilcox Technical Services, Y-12, LLC] had failed to appropriately label classified information, failed to protect and control classified information, and had so feebly assessed its own performance that it left national defense secrets susceptible to theft by adversaries for years.”
Despite the persistent problems, the National Nuclear Security Administration “gave Babcock & Wilcox a rating of ‘good’ on its annual performance review in a category including its control of classified information”, which earned the company an extra $10.6 million in bonuses for FY 2014. Moreover, when the mishandling was discovered, the NNSA opted not to fine the company $240,000 in penalties, believing it “had suffered enough” as a result of having additional bonus money withheld.
Energy Department investigators found “some of the [tossed] documents had never been reviewed by the staff responsible for making classification decisions. Those that had been reviewed were erratically categorized, according to NNSA’s notice of violation to Babcock & Wilcox. Some were marked at higher or lower classification levels than the information warranted. Others were designated classified when they held no sensitive information, according to the notice of violation.”
The Pentagon told the Senate Armed Services Committee that it will not demote former CIA director General David Petraeus for giving his biographer, Paula Broadwell, eight binders of highly classified information and then lying to FBI investigators about his actions. While Petraeus avoided jail time, reports surfaced that the DOD was considering “downgrading Petraeus to a three-star general” after he pleaded guilty to a misdemeanor charge of mishandling classified information. The Pentagon told Senators, however, that “The Army completed its review of his case and recommended no additional action.” An Army spokeswoman also recently announced that Broadwell, who is still an active Army Reserve officer, is not under any active investigation.
The State Department, which was initially ordered by U.S. District Court Judge Rudolph Contreras to release all of Hillary Clinton’s emails in connection with a FOIA lawsuit brought by Vice News’s Jason Leopold by January 29, “overlooked more than 7,000 pages of messages in need of interagency review and now needs until the end of February to get those messages properly reviewed for release.” Contreras has ordered government lawyers to appear on February 9, the same day as the New Hampshire primary, to discuss the status of the department’s efforts. Leopold’s lawyers have argued “that State hasn’t adequately explained the foul-up and has failed to establish why the monthlong delay is needed.”
Hillary Clinton emails recently released to Judicial Watch in a separate FOIA lawsuit reveal the lengths to which the agency went to accommodate Clinton’s email arrangement – and how common the knowledge was at the State Department that Clinton had both a personal email and server. The Hill reports that “The State Department proposed creating a ‘stand-alone’ computer operating on a separate network for Hillary Clinton”, ostensibly –according to the emails– because Clinton didn’t know how to check a computer for email, only her BlackBerry. Days after Clinton’s tenure began, “department official Lewis Lukens offered to give her a computer that would be ‘connected to the internet (but not through our system) to enable her to check emails from her desk.’” State never set up a “stand-alone” computer for Clinton, but it further begs the question of whether she was given express permission to solely use a personal email and server. As Diplopundit notes, “What’s the difference between using a State Department system and a stand alone system for somebody who doesn’t know how to use a computer? But more tha[n] that, we want to understand why it was necessary to set up a stand alone system. Did previous secretaries of state have their own stand alone systems? Did they have their own private email servers?”
The Department of Justice told Jason Leopold that it has no documents on Aaron Swartz, the computer programmer and internet activist who committed suicide in 2013 shortly after declining a plea bargain after being charged with wire fraud and violating the Computer Fraud and Abuse Act for downloading several million JSTOR articles. The DOJ is taking the bizarre stance that it has no documents in spite of the fact that its US Attorney’s Office in Massachusetts prosecuted the Swartz case and the Department of Homeland Security has previously released emails exchanged with the DOJ on the Swartz’s case in response to a FOIA lawsuit. Swartz also developed Secure Drop, which accepts encrypted documents and facilitates communication between sources and journalists while maintaining the source’s anonymity, to protect government whistleblowers.
The Washington Post recently reported on the CIA practice of deceiving its own workforce by planting memos that contain false information – known as “eyewash” – as a way to protect secrets. According to The Post, “In one instance, leaders at CIA headquarters sent a cable to the agency’s station in Pakistan saying operators there were not authorized to pursue a potentially lethal operation against the alleged al-Qaeda operative known as Abu Zubaida. But a second set of instructions sent to a smaller circle of recipients told them to disregard the other message and that the mission could proceed.” Troublingly, “Beyond the internal distrust implied by the practice, officials said there is no clear mechanism for labeling eyewash cables or distinguishing them from legitimate records being examined by the CIA’s inspector general, turned over to Congress or declassified for historians.” While officials say separate channels are used to convey accurate information, at least two “eyewash” cables are cited in the Senate Select Committee on Intelligence’s report on the CIA’s Torture Program.
A new Harvard study, “Don’t Panic: Making Progress on the ‘Going Dark’ Debate,” finds that the FBI’s warnings that encryption severely hampers its ability to track suspects are “wildly overblown”. Current and former intelligence officials participated in the study, which concludes that “going dark” is a misleading threat that ignores a “flood of new technologies ‘being packed with sensors and wireless connectivity’ that are expected to become the subject of court orders and subpoenas, and are already the target of the National Security Agency as it places ‘implants’ into networks around the world to monitor communications abroad.”
Political Science Quarterly says of National Security Archive Deputy Director Malcolm Byrne’s latest book, Iran-Contra: Reagan’s Scandal and the Unchecked Abuse of Presidential Power, “[I]f Byrne sought to write an account of Iran-Contra that was as thorough as it was readable, he has succeeded. Of the books on this topic, this stands among the best and will likely remain in that group for the foreseeable future.” Utilizing tens of thousands of pages of previously classified documents, Iran-Contra is the first full-length account of the affair to study and assess the various official investigations that were convened — the Tower Commission, the joint congressional hearings, and the independent counsel’s inquiry. Iran-Contra concludes that the affair could not have occurred without awareness and approval at the very top of the U.S. government. Byrne reveals an unmistakable pattern of dubious behavior — including potentially illegal conduct by the president, vice president, the secretaries of state and defense, the CIA director and others — that formed the true core of the scandal.
National Security Archive Senior Analyst Kate Doyle recently gave the keynote address for the “La Tortura en Mexico: Practica sin Freno” conference hosted by Mexico National University’s Museum of Contemporary Art. Doyle — who led the Archive’s publishing of the Mexican government’s unprecedented draft report on the nation’s “dirty war” in 2006 — said that torture in Mexico has become “routine and bureaucratic institutionalized process…a bad habit.” The 2006 report accuses three Mexican presidents of a sustained policy of violence targeting armed guerrillas and student protesters alike, including the use of “massacres, forced disappearance, systematic torture, and genocide.” The report makes clear that the abuses were not the work of individual military units or renegade officers, but official practice under Presidents Díaz Ordaz (1964-1970), Echeverría (1970-1976) and López Portillo (1976-1982).
Did you catch Stephen Colbert’s Donald Rumsfeld interview? The star of the segment was a declassified document that shows that before the Iraq invasion, US “knowledge of the Iraqi nuclear weapons program [was] based largely – perhaps 90% – on analysis of imprecise intelligence.” Read more about the document, and how it bolsters previous National Security Archive Iraq War analysis, here.
This week’s #tbt pick is a 2004 posting on the government censoring aviation warnings in the lead-up to 9/11. The posting notes how the Transportation Security Administration refused to release the texts or even the titles of five aviation warnings given to airlines just before the 9/11 terrorist attacks, even though the titles and substance of the warnings have been published in the best-selling 9/11 Commission report. The TSA cited five different FOIA exemptions to conceal its dubious secrets, and blacked out even the unclassified information – such as the document titles and numbers – claiming that this information fits in the “Sensitive Security Information” category.
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“It is big.”
That’s how Donald Rumsfeld described the percentage of “unknowns” about Iraq’s Weapons of Mass Destruction (WMD) program to Air Force General Richard Myers in a Secret September 9, 2002, memo.
The declassified memo – and accompanying eight-page Joint Chiefs of Staff report – makes clear that the Intelligence Community’s (IC) “knowledge of the Iraqi nuclear weapons program is based largely – perhaps 90% – on analysis of imprecise intelligence.” The report further spells out that the IC didn’t know the status of Iraq’s enrichment capabilities for its nuclear weapons program, that the knowledge of how and where Iraq was producing its biological weapons was “probably up to 90% incomplete”, and that the JCS seriously doubted that Iraq had the processes in place to build long range ballistic missiles – a clear refutation of arguments made by advocates for invading Iraq that Hussein was building long range missiles capable of hitting Israel.
The 2002 document – initially released to Rumsfeld in 2011 pursuant to a provision of the President’s Executive Order on Classification (which also allowed Rumsfeld to cut the line in front of FOIA requesters, including the National Security Archive, that had requested the same documents years earlier) and later released to Politico under the FOIA – was the star of Stephen Colbert’s recent Rumsfeld interview.1 Colbert, using the document and playing on Rumsfeld’s favorite turn of phrase, “known unknowns”, argues that the American public should have been made aware of the unknown-knowns, “the things that we know, and then we choose not to know them, or not let other people know we know.” In other words, that the public should not have been presented an air-tight case for invading Iraq when, as the JCS memo explicitly states, “Our assessments rely heavily on analytic assumptions and judgement rather than hard evidence.”
The 2002 JCS document supports previous National Security Archive analysis of the Iraq War; namely that the Bush administration’s “knee-jerk reaction to the September 11 attacks—encouraged by Rumsfeld himself—was simply to initiate preparations for war with a state that had had nothing to do with the Al Qaeda attack.” Or, for that matter, a state for which there was no clear evidence was developing WMD.In part one of a three-part series on the Iraq War published by the Archive in 2010, declassified notes by Rumsfeld’s assistant Stephen Cambone make the link from the Al Qaeda attacks to war against Iraq. Cambone’s September 11, 2001, notes, which were obtained by a FOIA request, show that a few hours after the “attacks Rumsfeld spoke of attacking Iraq as well as Osama bin Laden and directed Defense Department lawyer Jim Hayes to get ‘support’ for a supposed link between Iraq and Osama bin Laden from Paul Wolfowitz.” Other documents in the posting highlight the Pentagon’s interest in the perception of an Iraq invasion as a “just war” and State Department insights into the improbability of that outcome, and Secretary of State Colin Powell’s awareness, three days into a new administration, that Iraq “regime change” would be a principal focus of the Bush presidency.
Despite its significance, the 2002 JCS document was not shared with either Secretary of State Colin Powell, who was so angered about the lack of concrete intelligence on Iraq’s WMD programs that he called the intelligence underpinning his February 5, 2003, speech to the UN calling for military action against Iraq “bullshit“, or other key officials at the CIA. A senior member of the Joint Staff who was copied on the memo also said the president’s office was “the last place they would have sent it.” Yet Rumsfeld insists to Colbert that “It was all shared, it was all supplied. And it’s never certain. If it were a fact, it wouldn’t be called intelligence.”
To read more in-depth coverage and declassified documentary evidence on the Iraq War, visit the National Security Archive’s website. Seminal Archive postings on the lead-up to the Iraq War include: PR Push for Iraq War Preceded Intelligence Findings; The Iraq War – Part I: The U.S. Prepares for Conflict, 2001; The Iraq War – Part II: Was There Even a Decision?; The Iraq War – Part III: Shaping the Debate; and The Iraq War Ten Years After.
The full Colbert-Rumsfeld interview is available here:
1. During the interview Rumsfeld makes a point of telling Colbert that not only did he know of this document’s existence, but he had in fact posted it on his website years earlier. This may be, but I for one was unable to find it on his website after a thorough search. If any readers do locate it, let us know and I’ll update the posting.↩
The Real Legacy of Clinton’s Personal Email: Outdated Government-wide Email Management and Overclassification
Hillary Clinton’s sole use of personal email to conduct official business as secretary of state has been the subject of oftentimes-intense debate on the campaign trail. Reports have paid particular attention to whether or not she mishandled classified information, speculation that has been buoyed by the retroactive classification of emails that she sent or received over her personal account. While Clinton, her camp, and the State Department’s FOIA office all share blame for her personal email use, the larger – and more complicated – problems of poor, outdated email management and government-wide overclassification have been buried by frenzied reporting on whether or not any of Clinton’s emails were classified.
Some interesting — both amusing and substantive — documents have made their way to the public despite agency efforts to retroactively classify many of them. Roughly 82 percent of 54,000 pages of email have been released, although many are redacted with FOIA’s discretionary exemption 5 and personal privacy exemption 6. These include:
An August 3, 2009, email from Clinton’s unofficial adviser Sidney Blumenthal containing information “that might possibly be helpful” if US journalist Shane Bauer was charged as a spy after his arrest for inadvertently crossing an unmarked border between Iraq and Iran during a hike. Blumenthal notes, “He was not acting as a journalist at the time, though is a journalist—and a left wing kid”. The email was released in response to a FOIA lawsuit brought by Vice News’s Jason Leopold, and was notably not released to Bauer in response to his own FOIA request for records about how the State Department handled his imprisonment.
- A flowchart compiled by Clinton’s communications aide, Philippe Reines, about who can ride with Clinton in her limo. Is the Ambassador present tolerable? If so, then yes, the “Ambo” can go in the limo. While some might see the “hours” Reines spent getting the formatting for the chart just right as a waste of time, what he produced is “the key to the relationships the secretary has with her close aides.”
- An email showing Clinton praising the release of Guantanamo detainee Omar Khadr to State Department legal adviser Harold Koh. Clinton says in a September 29, 2012, email, “After spending the last 10 years on GTMO, at least this young man finally has another chance.”
- A very depressing birthday to-do list sent by Clinton’s former office manager Claire Coleman and is a “a soul-crushing timeline of her day.”
- A January 3, 2010, email confirms that she’s a fan of “Parks and Recreation” and “The Good Wife”, but has no idea how to work DVR.
- Other documents highlight her not-so-tech-savvy, her trouble with acronyms (ROLF!), and her hatred of fax machines and her love of iced tea.
Clinton insisted at the outset of the scandal that regulations requiring federal officials use a government email address, or at the very least routinely store emails from personal accounts concerning government work with the State Department, were not in effect while she was using her personal email address. Nate Jones and I debunked this claim last year, noting that the Federal Records Act, federal regulations on the books at the time (36 CFR 1263.22), and NARA guidance which the State Department received (NARA Bulletin 2011-03), should have prevented Clinton’s actions, requiring her to provide “effective controls over the creation and over the maintenance and use of records in the conduct of current business”. (Read here for our analysis of why Clinton, and hundreds of others at State, including its FOIA shop and IT department, were in the wrong for not blowing the whistle on her personal email usage.) Clinton recanted in September, apologizing for using personal email six months after the story broke, and repeated her call for all of the emails to be released to the public in full in response to FOIA lawsuits brought by the Associated Press, Judicial Watch, Jason Leopold, and dozens of others.
As the State Department nears its deadline for releasing all of Hillary Clinton’s 30,000 work-related emails – a U.S. District Court, in response to Leopold’s lawsuit, ordered the department to release all the records by January 29, although the department is requesting an additional month –, one key take-away is that the government is failing – 23 years after a National Security Archive lawsuit established emails as government records – to preserve emails. Current Office of Management and Budget guidance does not require federal agencies to manage “all email records in an electronic format” until the end of 2016, and the US National Archives currently trusts agencies to determine and preserve emails that agencies have “deemed appropriate for preservation” on their own, often by employing a “print and file” physical archiving process for digital records (only one percent of government email addresses are saved digitally by the National Archive’s recently-initiated “Capstone” program).
Given the outdated and routinely unenforced guidance, it’s no surprise that Clinton is far from alone among federal officials in skirting laws designed to preserve email records. Top government officials who used personal email for official business include: Clinton; former U.S. Ambassador to Kenya Scott Gration; chairman of the U.S. Chemical Safety Board Rafael Moure-Eraso; and former Secretary of State Colin Powell, who told ABC’s This Week “I don’t have any to turn over. I did not keep a cache of them. I did not print them off. I do not have thousands of pages somewhere in my personal files.” Others who did not properly save electronic federal records include Environmental Protection Agency former administrator Lisa Jackson who used the pseudonym Richard Windsor to receive email; current EPA administrator Gina McCarthy, who improperly deleted thousands of text messages (which also are federal records) from her official agency cell phone; and former Internal Revenue Service official Lois Lerner, whose emails regarding Obama’s political opponents “went missing or became destroyed.”
The State Department, however, has a particularly bad email management system. A 2015 Department of State OIG report found State’s email archiving system, ironically named SMART, goes almost entirely unused. The report found that State Department “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.’” In 2011 State Department employees only created 61,156 record emails out of more than a billion emails sent. In other words, roughly .006% of DOS emails were captured electronically, meaning Clinton likely preserved her records better than had she exclusively used a state.gov account.
A separate State Department Inspector General report, which was released earlier this January, shows that the agency’s FOIA office – perhaps especially under Clinton – compounded poor email management by giving an “inaccurate and incomplete” no-documents response to a FOIA request concerning Hillary Clinton’s email usage. Troublingly, State’s FOIA office told Citizens for Responsibility and Ethics in Washington (CREW) in response to its 2012 FOIA request that it had no documents on the subject of their request, even though Cheryl Mills, Clinton’s Chief of Staff, knew both of Clinton’s personal email account and the FOIA request, and advised a close aide to keep an eye on it.
The Wall Street Journal also reported that Mills “insisted on reviewing all Keystone-related documents being prepared for release, and flagged as problematic a few that the department’s records-law specialists felt obligated to release.” Mills reportedly informed a FOIA specialist that if records were released that Mills wanted withheld, “Mrs. Clinton’s office wouldn’t comply with any future document requests on any topic.” The Journal notes that the State Department was advised by a FOIA expert to shield Keystone pipeline documents by withholding them under the b(5) “withhold it because you want to” exemption.
Despite the airtime Clinton’s email practice has received in the campaign to date, not a single presidential candidate has offered their solutions for fixing poor records management practices and a FOIA system that Rep. Jason Chaffetz (R-Utah) recently called “broken“, and not a single debate moderator has asked a question about how to fix them.
Another systemic problem highlighted by accusations that Clinton mishandled classified material with her personal email is that of overclassification. The Archive’s Nate Jones’ succinctly summarizes the situation as follows: “Clinton’s mistreatment of federal records and the intelligence community’s desire to retroactively overclassify are two distinct troubling problems. No politician is giving the right message: Blame Clinton for poor records practices, but don’t embrace overclassification while you do it.”
Yet that seems to be what the State Department and the Intelligence Community are doing. In a July 2015 release of 3,000 pages of Clinton’s emails, State redacted portions of two dozen emails – even going out of its way to fully redact a 16-page speech Clinton gave to the Council of Foreign Relations in 2009 again using the “withhold it because you want to” Exemption 5. The State Department hid this unclassified document in its entirety despite the incredibly high public interest in the records. All of the redacted emails contained in the release are unclassified, and while “their contents were apparently not sensitive enough to national security at the time to have required a higher classification status” they must now, confoundingly, be redacted in part or in full.
More recently, the Inspector General for the Intelligence Community reported that Clinton’s personal emails contained “several dozen” classified emails – including emails related to drone strikes that were at “special access programs” level (a step beyond Top Secret), at least according to the CIA. Politico reported that the information in the emails was “per se” classified, rather than obtained through a classified product, because it pertains to drones – even though President Obama acknowledged drone strikes against Pakistan and US drone strikes are regularly reported on in the news. It is a bizarre world where the killing of an estimated 2,500-4,000 people (according to the Bureau of Investigative Journalism) is such a secret that the Secretary of State cannot talk with her aides about it. This Catch-22, combined with the Intelligence Community’s insistence that “you could easily classify the ham sandwich” — a joke made by the former head of US classification policy, Jay Bosanko — will ensure that governing the Department of State without being allowed to freely speak about a cornerstone of US foreign policy (drone strikes) will remain a Kafkaesque impossibility.
National Security Archive director Tom Blanton’s July 2015 Washington Post op-ed further lays out the ongoing problem of overclassification. Blanton argues that “the real secrets make up only a fraction of the classified universe, and no secret deserves immortality. In fact, essential to the whole idea of democratic government is that secret deals with dictators will come out eventually, not least to deter the worst deals from being made…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.”
Blanton is far from alone in pointing out persistent overclassification. The latest Information Security Oversight Office report showed that the Interagency Security Classification Appeals Panel (ISCAP) continues to overrule agency classification decisions in Mandatory Declassification Review appeals nearly 75% of the time.
To her credit, Clinton has repeatedly insisted she wants the documents made available in their entirety to the public.
Unfortunately, this hasn’t happened. At the time of writing this, more than 1,300 records have been retroactively classified. Thousands more have been unnecessarily withheld pursuant to the B5 exemption, supposedly discretionary and only intended for use when an identifiable harm outweighs the benefit of release. It is indefensible that finite FOIA resources have been wasted to withhold unclassified records that are the subject of enormous public interest even after President Obama and Attorney General Eric Holder mandated — six years ago — that agencies limit the use of this exemption except when absolutely necessary.
Luckily, it may be possible that overclassifcation can be addressed, and indeed, reversed. The same ISOO report also showed that from 2010 to 2014 the number of new secrets created each year (“original classification decisions”) dropped, and that in 2014 the number of new secrets generated was the lowest on record.
The government needs to redouble its efforts to reduce overclassification and update woefully outdated email preservation technology. If Hillary Clinton wants to prove her transparency and open government bona fides, she should add these important planks to her campaign platform.
Archivist of US Should Declare Torture Report a Federal Record, News from the Cyber Vault, and Much More: FRINFORMSUM 1/21/2016
National Security Archive FOIA Project Director Nate Jones called on the Archivist of the United States, David Ferriero, to use his binding legal authority to declare the Senate Intelligence Committee’s report on the CIA torture program a federal record. Jones made the call at the most recent FOIA Advisory Committee meeting, and noted that the Presidential and Federal Records Act Amendments of 2014 gives the Archivist of the United States the authority to determine whether or not something constitutes a federal record. The New York Times reported in November 2015 that the Department of Justice refused to allow its own officials, as well as those of the Defense Department, the CIA, and the State Department, to read the report under the pretense that its status as congressional or executive branch record is unclear. A letter from Sen. Dianne Feinstein (D-Calif.) and Sen. Patrick Leahy (D-Vt.) noted that “personnel at the National Archives and Records Administration have stated that, based on guidance from the Department of Justice, they will not respond to questions about whether the Study constitutes a federal record under the Federal Records Act because the FOIA case is pending.” Jones stated that the Federal FOIA Advisory Council, the Department of Justice, and US National Archives must act “with deeds not just words” to support FOIA. To do this, the entities involved should call the Torture Report what it is: a federal record, and allow it to be reviewed on its merits via FOIA, even if it is found that it must be currently withheld under Exemption One to protect US national security. Claiming it is “not a record” so that it exists in a land beyond FOIA because of fear that it may be released is not a solution appropriate for the Federal FOIA Advisory Board, or its members, to make or endorse.
Other news from the FOIA Advisory Committee meeting includes the announcement that its mandate has been extended for an additional two years. The Committee also voted to move forward on ultimately requesting that Archivist David Ferriero request that the Office of Management and Budget (OMB) update its FOIA fee guidelines. The “current” guidance is missing a key word pertaining to what amount of FOIA costs agencies are intended to recoup through fees, and dates from 1987 – well before the internet and agencies’ ability to cut copying costs by sending records electronically. Future Committee meetings will also be live streamed; video recording of the most recent meetings were delayed by over a month because of 508 compliance issues – which require that federal agencies ensure that persons with disabilities have comparable access to data as persons without disabilities, including video transcripts.
Unfortunately, “logistical problems, problems about doing polls and publishing results” have so far prevented the Committee from asking the public for input on one of the FOIA issues the Committee is supposed to address. As such, the National Security Archive and Project on Government Oversight decided that, in order to get a more representative view on the issue of FOIA fees, we would distribute an unofficial survey similar to the survey the Committee sent federal FOIA processors. We made the results of our joint FOIA fee survey for requesters available to the public and the Advisory Committee before the latest meeting (thank you very much to everyone who filled it out and helped distribute). Some key takeaways from the 100 responses include:
- 64% of respondents fell into the Educational/Non-Commercial/ Scientific Institute/News Media fee category; 9% didn’t know their fee category. If you are unsure of your fee category, check out the Archive’s helpful guide here and page 12 here.
- Most respondents, 65%, were unaware that under the Open Government Act of 2007 that agencies are not allowed to charge non-commercial FOIA requesters “search fees, or, if applicable, duplication fees” if the agency misses the FOIA’s statutory twenty-day response deadline.
- Nearly a quarter or respondents spent 1-3 hours addressing fee-related issues per request.
- 70% of respondents saw an advantage to eliminating FOIA fees, 30% saw a disadvantage. Most who saw a disadvantage to eliminating fees cited concerns that requesters would abuse the system.
The National Security Archive joined more than 40 other open government groups, in an effort coordinated by Openthegovernment.org, criticizing the troubling carve-outs for the Intelligence Community in the House’s otherwise very good FOIA reform bill. The bill contains exemptions for the 17 agencies that make up the Intelligence Community from certain provisions of the bill, including “language that states that currently-protected information relating to ‘sources and methods’ would not be subject to disclosure under any of the amendments in the bill”. The bill also exempts the IC from necessary reforms to the consultation process and a provision requiring agencies to publish “a list” of all denied material unless the disclosure is prohibited by law. The 17 IC agencies are among the most frequently FOIA-ed in the government; they are: The Department of Homeland Security; the Department of State; Air Force Intelligence; Army Intelligence; the Central Intelligence Agency; Coast Guard Intelligence; the Defense Intelligence Agency; the Department of Energy; the Department of the Treasury; the Drug Enforcement Administration; the Federal Bureau of Investigation; Marine Corps Intelligence; the National Geospatial-Intelligence Agency; the National Reconnaissance Office; the National Security Agency; Navy Intelligence; and the Office of the Director of National Intelligence.
The carve-outs would create an unacceptable two-track FOIA system and undermine the otherwise very good FOIA improvements in the bill, including its codification of a presumption of openness, strengthening of the FOIA ombuds OGIS, and placing a 25-year-sunset for FOIA’s “withhold it because you want to” Exemption 5.
House Oversight Committee Chairman Jason Chaffetz (R- Utah) is seeking information, including performance evaluations of the officials who oversee the State Department’s FOIA shop, after the DOS IG released a damning report showing that the agency’s FOIA office gave an “inaccurate and incomplete” no-documents response to a FOIA request concerning Hillary Clinton’s email usage. The IG report noted that mistakes made while Clinton was in office were “part of a long-standing problem stretching back through previous administrations,” and Chaffetz is consequently “asking for information on the 415 FOIA requests that involved the past four secretaries of State as well as all communications related to those requests.”
The latest posting for the Archive’s Cyber Vault Project – an online resource documenting the cyber activities of the US and foreign governments – sheds light on various aspects of US military operations in cyberspace. The posting consists of 27 records, obtained largely through the FOIA, and covers six key areas, including terminology and computer network defense. Highlights from the documents include a declassified Secret May 19, 2011, Cyber Command operations order on the role of Cyber Command and other military cyber organizations in Operation Gladiator Shield – defense of the Global Information Grid, and the Department of Defense’s August 28, 2009, Strategy for Counterintelligence in Cyberspace, which notes that “a new operational environment has emerged as evidenced by the increasing frequency and destructiveness of attacks and exploits launched against the United States through cyberspace.” Visit the Cyber Vault for previous postings on the National Security Agency and Cyberspace and US national security.
In a recent article for Just Security asking what can be done to fix pre-publication review, Steve Aftergood argues that while there are several possible routes for fixing the dysfunctional system – wherein current and former government employees submit their work to ensure it contains no classified information before it’s published –, attention would be better focused on fixing the classification system. Aftergood notes, “Pre-publication review is one of a cluster of issues that derive from national security classification policy. Other such derivative issues include declassification of historical (and contemporary) records, personnel security clearance policy, oversight of classified programs, national security whistleblower policy, and more. While each of these issues is important, classification policy is at or near the root of all of them. And if classification practices can be improved, then each of these derivative issues should become more tractable than they currently are.”
The Naval Criminal Investigative Service is reopening its investigation into the beatings – one that resulted in death – of several detainees in Afghanistan at the hands of Navy SEALs and Afghan security forces. US Army soldiers told NCIS they witnessed the abuse, and “A Navy lawyer advising the command recommended in 2012 that three members of the SEALs be charged with assault. But a SEAL commander cleared the team members of any wrongdoing in a closed disciplinary process typically used only for minor infractions.” NCIS reopened its case after questions from Congress in the wake of the Times initial reporting on this incident last month.
Naomi Gilens recently shared a picture on twitter of a Maryland driver ostensibly promoting FOIA’s Exemption 6 – the personal privacy exemption. Reflecting the District’s love of FOIA, the plate has received a lot of attention, liked 42 times and re-tweeted 19.
Today’s #tbt pick is chosen with the recent 35th anniversary of the ending of the Iranian hostage crisis in mind. It is a 1980 Farsi “survival guide” of phrases that was issued to the Delta Force commandos who participated in the failed Desert One rescue mission in April 1980. The Top Secret document was release to the Archive after a 12-year fight and a FOIA lawsuit.
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The recommendation is part of the Committee’s broader attempt to address the oftentimes-contentious issues surrounding FOIA-fees. The subcommittee on fees also issued a survey on a variety of fee issues, however it only sent the survey to federal FOIA processors.
In an effort to provide a more comprehensive picture of FOIA fees as they affect all sides of the FOIA process, the National Security Archive and the Project on Government Oversight distributed a similar, independent, unofficial survey to non-government FOIA stakeholders. And with 100 respondents to our questionnaire, we will be able to present the Committee with a more balanced view of the FOIA fees debate at its upcoming January 19 meeting.
The full results are here. Highlights from the survey include:
- 64% of respondents fell into the Educational/Non-Commercial/ Scientific Institute/News Media fee category; 9% didn’t know their fee category. If you are unsure of your fee category, check out the Archive’s helpful guide here and page 12 here. There is also an important distinction between fee categories and fee waivers that requesters — and FOIA shops — should be aware of. OGIS’s Amy Bennett has a very useful blog on OGIS’s The FOIA Ombudsman that provides a great refresher on the difference between the two. The key takeaway is that requesters should make every effort to obtain a “favorable fee category” – like news media or educational – rather than seek a fee waiver, which demands “a much higher threshold for consideration than a fee category” (according to FOIA.gov only 56% of fee waivers were granted in FY2014).
The chart below shows what fees agencies can charge requesters based on their fee category:
- Most respondents, 65%, were unaware that under the Open Government Act of 2007 that agencies are not allowed to charge non-commercial FOIA requesters “search fees, or, if applicable, duplication fees” if the agency misses the FOIA’s statutory twenty-day response deadline. The chart below shows that agencies can charge a requester – if anything – if they miss this deadline:
- Nearly a quarter or respondents spent 1-3 hours addressing fee-related issues per request.
- 31% of respondents indicated that none of their requests incurred fees, 44% said less than half of their requests incurred fees, and 5% said most requests incurred fees.
- 36% of requesters were usually satisfied with how agencies handled their fees, 14% were usually not satisfied, and 9% were never satisfied.
- Many respondents indicated that their satisfaction level with fee issues did not change by agency (for better or for worse), however several requesters pointed to the Department of Homeland Security’s failure to deal with fee issues adequately. One respondent notes, “Department of Homeland Security agencies have been abysmal, on the whole, particularly CBP, FEMA and ICE, in addition to DHS HQ”; another says “some agencies, such as FBI, and many elements of DHS including CBP and ICE use fees as a tool to avoid the work of having to process FOIAs.” Another respondent noted that the Defense Intelligence Agency was uncooperative (however another respondent indicated the DIA had been most responsive), with another saying “they are all terrible.”
The National Archives received several kudos for their handling of fee issues.
- 70% of respondents saw an advantage to eliminating FOIA fees, 30% saw a disadvantage. Most who saw a disadvantage to eliminating fees cited concerns that requesters would abuse the system.
- Those who saw an advantage to eliminating fees said it would be in keeping with transparent and open government, and noted that fees are not recouped by agencies and cover less than 1% of FOIA costs.
One comprehensive response is as follows:
“FOIA fees do not serve the purpose for which they were designed. They do not bring any appreciable income to agencies to recoup the expenses of processing requests and are only used to obstruct the process and avoid processing requests. Fee categories are constantly misapplied by agencies, very rarely in the requester’s favor, and agencies will refuse to process requests for the months or years that a fee determination is pending appeal. Furthermore, a significant amount of litigation would be avoided if there were no fees, allowing judges to focus on the actual merits of an agency’s response to a request. That being said, I believe that fees should only be eliminated for non-commercial requesters, but that commercial requesters should continue to pay for the services from which they are profiting.”
- Respondents were evenly split on how often, if ever, fees encouraged them to narrow the scope of their FOIA requests; many said rarely-to-never, while others said often or almost always. One respondent noted that their fees would be much less of an issue if the agencies were more willing to release documents on CD or electronically rather than providing paper copies.
- One respondent suggests that disincentives to charging unnecessary fees is needed, saying “FOIA needs [an] amendment to establish disincentives for unwarranted charging of fees, for example, automatic civil service review for any official who imposes fees later found by a court to be unwarranted.”
The full results are available here. Thanks to all who participated!
The FOIA Advisory Committee’s next meeting is January 19 in Washington, DC. Given the month-long lag between the last meeting and the video recording being made available to those who could not attend, are there any volunteers to use Ustream, periscope, or a similar app to stream upcoming meeting?
On Monday the House of Representatives passed the FOIA Oversight and Implementation Act (H.R. 653) under suspension of the House rules. The bill, introduced by Representative Darrell Issa (R-Calif.) and cosponsored by Elijah Cummings (D-Md.) and Mike Quigley (D-Ill.), is “one of the few pieces of truly bipartisan legislation expected to pass this Congress,” according to The New York Times. House Oversight Committee Chairman Jason Chaffetz (R- Utah) noted that “In large part, the FOIA, the way it operates now, is broken,” (a finding emphasized in a recent House Oversight and Government Reform Committee report), and that “This piece of legislation will make that FOIA process smoother. It’ll make it more effective, more efficient.”
The reform bill, among other things, codifies the presumption of openness mandated in Obama’s Day One FOIA Memo, “directs agencies to withhold information requested under FOIA only when there is ‘foreseeable harm’ to one of the interests protected by a FOIA exemption,” strengthens the FOIA ombuds OGIS by granting it the “ability to communicate directly with Congress and issue advisory opinions in mediation,” and ensures that agencies cannot invoke FOIA’s “withhold it because you want to” Exemption 5 for information that is older than 25 years. The bill also requires annual compliance reviews, makes it easier to be awarded attorney fees, requires agencies to accept FOIA requests by email, instructs that those responsible for withholding information be identified in the denial, and mandates the creation of “a central portal to distribute FOIA requests government-wide and online disclosure of all records that are the subject of three or more requests.”
It’s worth noting that the Department of Justice’s Office of Information Policy (OIP), which oversees government-wide FOIA compliance, issued guidance in March 2015 on proactive posting of frequently requested records – defined as those which have been released three or more times. The guidance says, “even in the absence of multiple requests for the same or similar records, agencies should use their best judgment at the time each request is received to determine whether they believe the responsive records concern a popular topic that is likely to become the subject of subsequent requests in the future.” This guidance has been on the books for the better part of a year, so while legislation codifying it is undoubtedly good, agencies proactively post records infrequently and an oversight mechanism to enforce compliance remains necessary.
While the House bill is a good step in the right direction, last-minute carve-outs for the frequently FOIA-ed 17 agencies that make up the Intelligence Community from the bill’s improvements are troubling.1 Added at the insistence of the House Permanent Select Committee on Intelligence (HSPCI), the carve-outs exempt the Intelligence Community (IC) from certain provisions, including “language that states that currently-protected information relating to ‘sources and methods’ would not be subject to disclosure under any of the amendments in the bill”. The bill exempts the IC from necessary reforms to the consultation process; a big mistake as intelligence agencies are the biggest consultation abusers. The bill also contains a provision requiring agencies to publish “a list” of of all denied material unless the disclosure is prohibited by law. This is another tremendously beneficial provision of the bill, but it will be watered-down if the IC is exempted.
Openthegovernment.org’s Executive Director Patrice McDermott notes, “The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government.” The Project on Government Oversight’s Liz Hempowicz also says, “This situation is also alarming because it closely tracks the absurd objections from the banking interests that derailed this reform in 2014.”
FOIA reform now moves to the Senate, where passage of similar FOIA reform (S 337) seems likely. Majority Whip John Cornyn (R – Texas) urged his chamber to take up the legislation, noting “this presumptive notion of openness is important to the functioning of our democratic form of government.” If a FOIA bill passes the Senate, the difference between the bills will need to be reconciled. This reconciliation is how the two unanimously supported FOIA bills died in late 2014.
FOIA was most recently amended by the 2007 Open Government Act, which broadened the definition of “a representative of the news media” to include electronic-only media and freelancers, established the FOIA ombuds OGIS, and prevents agencies from charging certain fees if they miss their response deadlines. Since then, FOIA reform has been introduced six times without becoming law.
The House also passed a bill this week to improve disclosure of donations over $200 to presidential library foundations.
DOJ OIP director Melanie Pustay – who Rep. Chaffetz told in June must be living in “la-la-land” if she thought FOIA was being properly implemented – recently gave another head-scratching quote. In a truly excellent Nieman Report on “Fifty Years of 50,” Pustay professed ignorance of why FOIA requesters are increasingly frustrated with growing backlogs and bogus use of exemptions. Pustay says, “I’m always perplexed by those sorts of criticisms.”Pustay claims that since her tenure began in 2007, “agencies have outright rejected only 9 percent of FOIA requests”. This figure is highly misleading, and does not include the FOIA requests that it denies based on reasons including: fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits); “no records” (very frequently the result of inadequate searchers by DOJ employees); and requests “improper for other reasons” (which ostensibly includes the “can neither confirm nor deny” glomar exemption). The figure cited by Pustay also includes records that have been released in part – a misleading categorization when “in part” can mean 99 percent of a document is withheld. Pustay’s off-base comments are further proof that better FOIA oversight mechanisms are needed.
The National Security Agency (NSA) recently told a FOIA requester seeking budget and graphic design information for a coloring book peddling the agency’s CryptoKids to “hope that your case may be assigned to a Case Officer within the next 12-18 months. Estimating an actual completion date for your case is also difficult, as it is entirely dependent on whether or not document [sic] are located, how many documents are found, and the complexity of any document located. The estimated completion date for those cases in the median range is 3-4 years.”
Information Security Oversight Office (ISOO) director John Fitzpatrick left his position to join the National Security Council, where he will serve as Senior Director for Records Access and Information Security Management. Steve Aftergood notes that, “While there remains much to criticize in classification and declassification policy, Mr. Fitzpatrick presided over a four-year decline in original classification activity, such that by 2014 the number of new national security secrets created annually had dropped to the lowest ever reported by ISOO in its 35 year history.”
The Supreme Court declined hearing a petition for certiorari in EPIC’s FOIA lawsuit against the Department of Homeland Security for information on its “wireless kill-switch”. This means the U.S. Court of Appeals for the D.C. Circuit’s August 2015 ruling that DHS can “withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies” stands.
Today is the last day to fill out the National Security Archive and the Project on Government Oversight’s FOIA fees survey. Please make sure to fill it out and help us provide a more representative view of FOIA fees for the government’s FOIA Advisory Committee, which recently distributed a similar survey – but only to federal FOIA processors. The results will be analyzed before the Committee’s next meeting, to be held on January 19.
This week’s #tbt pick is inspired with the NSA’s CryptoKids in mind, and is the CIA’s Osama bin Laden doll, codenamed “Devil Eyes”. The CIA has not yet responded to the Archive’s 2014 FOIA request for information on the doll – intended for distribution in Afghanistan or Pakistan and whose face was designed to frighten children and painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings” – but a copy was was auctioned off by the Nate D. Sanders auction house in June.
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1. The agencies that make up the IC are: The Department of Homeland Security; the Department of State; Air Force Intelligence; Army Intelligence; the Central Intelligence Agency; Coast Guard Intelligence; the Defense Intelligence Agency; the Department of Energy; the Department of the Treasury; the Drug Enforcement Administration; the Federal Bureau of Investigation; Marine Corps Intelligence; the National Geospatial-Intelligence Agency; the National Reconnaissance Office; the National Security Agency; Navy Intelligence; and the Office of the Director of National Intelligence.
DOD’s Got a Good FOIA Policy Chief but Will Renew Lobby for Bad New FOIA Exemption Anyway: FRINFORMSUM 1/7/2016
Defense Department Chief of FOIA Policy, Jim Hogan, has seen some incredible documents over the course of his 20-year-career reviewing and processing FOIA requests. He reviewed a WWII-era document signed by Hollywood star and Navy intelligence officer, Lieutenant Commander Douglas Fairbanks, Jr. He saw “papers signed by Lieutenant Colonel Colin Powell when he was a White House Fellow at OMB during the Nixon Administration.” And he sees public awareness of FOIA experiencing something of a Renaissance – which has its complications.
Hogan recently told MuckRock’s Mike Morisy, “I don’t know if the public quite really understands what [FOIA] means, how they can take advantage of it, and also, I think their expectations are, as you know, I make a FOIA request, I should be able to get this stuff within a few weeks.” This expectation – which is bolstered by the E-FOIA amendment’s requirement that agencies process FOIA requests in 20 working days – is bound to cause consternation; the average processing time for “processed perfected” complex FOIA requests across the DOD in FY 2014 was 97 days (the DIA takes 1,345 days on average, the NSA 425), and the average time for pending perfected requests is much higher – 408 days.
Hogan says of the delays – which are compounded by finite resources – “We action officers share the same frustrations that FOIA requesters do.” Hogan argues that making FOIA officers and other agency components aware of available technology that can help streamline FOIA processing is key to combating the current FOIA backlogs. Another key? Embracing the “release to one, release to all” pilot program, which the DOD is participating in under Hogan’s direction along with six other agencies. (Adam Marshall of Reporters Committee for the Freedom of the Press has published an excellent rundown of the pilot program here.)
While the public is fortunate that the DOD’s FOIA Policy team, which oversees one of the largest FOIA programs in the federal government, is committed to improving the quality of customers’ FOIA experience, it’s less fortunate that the DOD is gearing up again this year up to lobby for a new, unnecessary, and harmful FOIA exemption. Last year the agency unsuccessfully lobbied Congress to add a new exemption to the FOIA that would have allowed the DOD to “withhold information on military tactics, techniques, and procedures from release to the public” that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed. Steven Aftergood notes the proposed exemption “stops making sense where DoD ‘tactics, techniques and procedures’ are themselves the focus of appropriate public attention” – like interrogation techniques and offensive cyber operations that should be subject to vigorous public debate.
The DOD is also likely to re-introduce an amendment to nullify the 2011 Supreme Court decision in Milner v. Department of the Navy. The decision “significantly narrowed” the scope of FOIA’s Exemption 2, which concerns information related solely to the internal personnel rules and practices of an agency, and the DOD wants to “reinstate the pre-Milner status quo with its more expansive withholding authority.” The DOD cited Exemption 2 165 times agency-wide in FY2014; I would provide a point of comparison from 2010 or 2011, however the links to these DOD annual FOIA officer reports on the Department of Justice’s Office of Information Policy website are broken. Aftergood reports, “the proposed Milner amendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.”
The State Department Inspector General released a report today showing that the agency’s FOIA office gave an “inaccurate and incomplete” no-documents response to a FOIA request concerning Hillary Clinton’s email usage. In 2012, after learning EPA administrator Lisa Jackson used “an alias email at work with the name ‘Richard Windsor,’” Citizens for Responsibility and Ethics in Washington (CREW) filed a FOIA request for “records sufficient to show the number of email accounts of or associated with Secretary Hillary Rodham Clinton.” Troublingly, State’s FOIA office told CREW that it had no documents on the subject of their request, even though Cheryl Mills, Clinton’s Chief of Staff, knew both of Clinton’s personal email account and the FOIA request, and advised a close aide to keep an eye on it. The report also finds that the secretary’s office lacked written procedures for handling FOIA requests, that some requests lingered in a queue for more than 500 days without a reply, and that mistakes made while Clinton was in office were “part of a long-standing problem stretching back through previous administrations.”
The State Department released its latest batch of Hillary Clinton emails on New Years Eve. Among the 5,000 documents is a flowchart compiled by Clinton’s communications aide, Philippe Reines, about who can ride with Clinton in her limo. Is the Ambassador present tolerable? If so, then yes, the “Ambo” can go in the limo. While some might see the “hours” Reines spent getting the formatting for the chart just right as a waste of time, what he produced is “the key to the relationships the secretary has with her close aides.” The State Department has until the end of January to release the remainder of Clinton’s 30,000 emails.
Clinton joked on the campaign trail earlier this week that she would “get to the bottom” of investigating UFOs, likely exciting many UFO enthusiasts, and possibly even her campaign chair, John Podesta, who famously called for the declassification of all documents on aliens. Podesta was behind many of the Clinton administration’s important declassification decisions when he was Chief of Staff, including playing a role in E.O. 12958 that requires the declassification of most government documents over 25 years old. Unfortunately for many, Podesta tweeted that his “biggest failure of 2014: Once again not securing the #disclosure of the UFO files.” The government has, however released a number of documents on the Area 51 stealth facility in Nevada to the National Security Archive, including the first official acknowledgement of Area 51, which is contained in a CIA history of the U-2 spy plane.
The National Security Archive and the Project on Government Oversight’s FOIA fees survey is open for one more week only, so if you haven’t taken a few minutes to fill it out yet – please do! Doing so will provide a more representative view of FOIA fees for the government’s FOIA Advisory Committee, which recently distributed a similar survey – but only to federal FOIA processors. Now we need to hear from non-government FOIA stakeholders so that your views on FOIA fees can be cataloged and documented.
The Supreme Court will consider a petition for certiorari in EPIC’s FOIA lawsuit against DHS for information on its “wireless kill-switch” tomorrow. EPIC filed the petition with the Supreme Court in August 2015 after the U.S. Court of Appeals for the D.C. Circuit’s ruled DHS could “withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies.” EPIC is also challenging the interpretation of FOIA Exemption (7)(F), “which permits withholding of law enforcement information that, if released, ‘could reasonably be expected to endanger the life or physical safety of any individual.’” The FOIA request at the bottom of the case seeks information on “the 2011 Bay Area Rapid Transit (BART) disruption of all cellular service inside four San Francisco transit stations for three hours in order to suppress a mass public protest against a BART officer’s lethal shooting of a homeless man, Charles Hill.” DHS first told EPIC it had no documents responsive to their request, only providing EPIC with a heavily redacted version of SOP 303 after EPIC sued in district court.
This week’s #tbt pick is chosen with reporting that sailors aboard the USS Pueblo – an American SIGINT ship captured by North Korean forces on January 23, 1968, and the only commissioned US Navy ship still in foreign possession – have renewed hopes for compensation for their 11 months in captivity. The Pueblo’s capture was an intelligence breach of enormous proportions, and, followed by the downing of a US reconnaissance EC-121 plane over the Sea of Japan in 1969 by a North Korean MiG-17, encouraged the Nixon Administration to develop contingency plans that would allow the use of tactical nuclear weapons against Pyongyang. Sailors from the Pueblo are pushing for compensation in the wake of Congress awarding $4.4 million to each of the American hostages held for 444 days in Tehran, although some worry that a lack of awareness about the incident may hamper their efforts. A 2014 Archive posting co-authored by Archive senior fellow John Prados and author Jack Cheevers shows, among other things, that “A small committee secretly appointed by LBJ to get to the bottom of the Pueblo debacle criticized the planning and organization of the ship’s mission. But the committee’s blunt report, which was initially to be given to Congress, was instead ordered destroyed by Defense Secretary Clark Clifford.”