Skip to content

Federal Judges Call Out DOJ, State Department for Lackluster FOIA Performance: FRINFORMSUM 2/11/2016

February 11, 2016
Excerpt from U.S. District Judge Ketanji Brown Jackson's Feb. 4 ruling.

Excerpt from U.S. District Judge Ketanji Brown Jackson’s Feb. 4 ruling.

U.S. District Judge Ketanji Brown Jackson doesn’t trust the Department of Justice to faithfully review surveillance records requested under the FOIA for segregability. Jackson recently ruled that the agency must submit unredacted versions of “specific documents for ex parte submission and a private review by the judge” and explain why it withheld documents on internet surveillance in connection with a two-year-old FOIA case between the DOJ and the Electronic Privacy Information Center (EPIC). EPIC filed its initial suit in 2013 in connection with a request for “records about the pen registers and trap and trace devices used for the surveillance of telephone and internet activity”. Among the records sought are 25 semiannual reports required by the Foreign Intelligence Surveillance Act (FISA) “on the use of the surveillance devices, including information on the number of applications granted and modified under the FISA and the total number of installations approved and denied under emergency circumstances.” The semiannual reports also reportedly include FISA process improvements and “the National Security Division’s descriptions of the scope of the Foreign Intelligence Surveillance Court’s jurisdiction.”

Two of the 198 photos released.

Two of the 198 photos released.

The Defense Department insists that releasing 1,800 photos taken during criminal investigations into detainee abuse in Iraq and Afghanistan would endanger American service personnel serving abroad. In what the American Civil Liberties Union’s Jameel Jaffer called “selective disclosure”, the DOD released 198 photographs of detainee abuse, primarily of small cuts and bruises, taken during the investigations in response to a FOIA request filed by the ACLU in 2004 in the wake of the Abu Ghraib prison scandal. The 2004 request prompted the DOD to release a wave of documents about interrogation practices, only hitting a bump in 2009 with the impending release of the photos. The Obama administration initially planned to comply with an order to release the first batch of photos, but reversed course after backlash – and warnings from former defense secretary Robert Gates – that releasing the photos would endanger US service personnel. President Obama then “obtained legislation from Congress permitting the defense secretary to exempt the photos from disclosure under the information act. The reversal was an early milestone on secrecy policy for an administration that had promised to be the most transparent in history.”

U.S. District Court Judge Rudolph Contreras said in a hearing related to Vice News reporter Jason Leopold’s FOIA request for Hillary Clinton’s emails that the State Department “should expect to produce something on the 18th, if not sooner”. Contreras initially ordered the department to release all 54,000 pages of emails by January 29, however the department “overlooked more than 7,000 pages of messages in need of interagency review” and said it needed until the end of February to review the records for release; Contreras ordered State to file a detailed report by Friday on what caused the oversight. Leopold’s lawyers argued “that allowing State to drag out the release of the emails deprives voters in the Democratic primaries and caucuses of information they are entitled to have as they make up their minds.” Contreras said bluntly, “To state the obvious, these documents have a lot of public interest and the timing is important for the reasons stated by the plaintiff”. Contreras asked the government’s lawyer, Robert Prince, how many of the outstanding pages were done being reviewed, the answer being 570 emails.  “Let’s get those up by [next] Tuesday,” Contreras said; to which Prince replied, “Your honor, I don’t think that’s at all possible”.

State Department FOIA officers overlooking thousands of records responsive to FOIA requests “because they didn’t realize some records had been ‘retired’ to State archives and because they misunderstood the scope of some electronic files belonging to aides to former Secretary of State Hillary Clinton” is of additional concern. According to a new filing in a FOIA suit brought by Judicial Watch, “The IPS [Information Programs & Services] employees working on this FOIA request did not initially identify S/ES [Secretary of State/Executive Secretary] retired records as a location to search for potentially responsive records because they were operating with the understanding that, to the extent responsive records from the Office of the Secretary existed, they resided within S/ES. These IPS employees were unaware at the time that these shared office files had been retired”. The glaring oversight seems to confirm a recent DOS IG 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.

U.S. Secretary of State Colin Powell holds up a model vial of anthrax during his historic presentation before the United Nations Security Council, February 5, 2003. (Image extracted from a video available from the White House Web site.)

U.S. Secretary of State Colin Powell holds up a model vial of anthrax during his historic presentation before the United Nations Security Council, February 5, 2003.

The State Department Inspector General, after reviewing the communications of the last four secretaries of state, determined that classified emails were found in personal accounts belonging to Colin Powell and top aides to Condoleezza Rice. Representative Eliot L. Engel (D-NY) said in response to the investigation, “The private-email problem is not a Hillary Clinton problem. It’s a governmentwide problem that’s existed since the advent of email itself.” The two classified emails on Powell’s account originated from ambassadors and Powell claimed the contents are “fairly minor”, going onto say “I wish they would release them, so that a normal, air-breathing mammal would look at them and say, ‘What’s the issue?’” The New York Times erroneously reported that the classified emails are not eligible for release until 2036; however they can be released as soon as their contents are no longer deemed to harm national security, or when public interest in their release outweighs the potential harm in their release. No doubt Colin Powell would argue that day is today.

OpentheGovernment.org (OTG) and the American Society of News Editors have teamed up to draft a series of questions for 2016 candidates for federal office related to federal open government issues. As OTG  notes, “government transparency and secrecy have played a major role in the most salient political issues of this still nascent election cycle, ranging from FOIA requests on Flint’s water crisis, to debates on NSA whistleblower Edward Snowden, to questions on campaign finance. Still, while these issues are raised frequently in the midst of a high-profile controversy, candidates are rarely asked about their underlying open government beliefs and policies.” The questions, including queries of where candidates stand on FOIA reform legislation and what needs to be done to fix FOIA processing, can be found here, and are a great resource for editorial boards and reporters covering the campaigns.

The website governmentattic.org recently posted the National Archive and Records Association database of the 3603 records identified as “withheld in full” in the JFK Assassination Records Collection. The document was released in part under the FOIA, and lists the record number, series, and titles for thousands of – primarily FBI and CIA – records on the assassination. The disclosure comes at an interesting time; the  Kennedy Assassination Records Collection Act of 1992 (JFK Act) requires that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. Read more about the JFK Assassination Records and the enduring lessons from the Assassination Records Review Board here.

Adolf Tolkachev's official building pass. [Source: THE BILLION DOLLAR SPY - Courtesy of H. Keith Melton and the Melton Archive]

Adolf Tolkachev’s official building pass.
[Source: THE BILLION DOLLAR SPY – Courtesy of H. Keith Melton and the Melton Archive]

The top leaders of the Soviet Union discussed the case of controversial CIA spy Adolf Tolkachev during the Politburo meeting on September 25, 1986, according to the original Russian transcript and English translation recently published by the National Security Archive. The Russian original was first published online by the National Security Archive in 2015. The account directly contradicts allegations by former CIA historian Benjamin B. Fischer that Tolkachev “was the perpetrator of an elaborate KGB hoax”, or “a figment of the KGB’s creation and the CIA’s imagination”.

Guatemalan dictator Oscar Mejía Víctores died on February 1 at the age of 85. According to Archive senior analyst Kate Doyle, “Throughout his career, Oscar Mejía Víctores cut a classic figure as a loyal military officer, brutal strongman, and untouchable human rights violator.” Declassified documents in Doyle’s latest posting for Unredacted show the Reagan administration’s ambivalence towards Mejía Víctores, a man who believed international human rights groups like Amnesty International were guerrilla supporters, and once said that a US member of Congress who warned him about the country’s human rights record sounded “like a member of the EGP” (Ejército Guatemalteco de los Pobres—Guatemala Army of the poor, one of the four principal Guatemalan insurgent groups).

The National Security Archive's Peter Kornbluh meets with Chilean foreign minister Heraldo Muñoz on January 20, 2016, in Santiago to discuss declassified diplomacy and human rights.

The National Security Archive’s Peter Kornbluh meets with Chilean foreign minister Heraldo Muñoz on January 20, 2016, in Santiago to discuss declassified diplomacy and human rights.

The Archive’s Peter Kornbluh met with Chilean foreign minister Heraldo Muñoz on January 20th in Santiago to discuss the effect of declassified diplomacy on human rights. Kornbluh’s latest book, Diplomacia Encubierta con Cuba: Historia de las Negociaciones Secretas Entre Washington y La Habana, co-authored by William M. LeoGrande and published in December in Mexico by Fondo de Cultura Economica, also received attention from Peru’s El Comercio newspaper. More about the book and Kornbluh’s work with declassified diplomacy can be found on the Archive’s website.

Ca3ZZ1sWwAATjg_

“This will not be a situation like the Iraq war”

This week’s #tbt document pick is a Top Secret/Codeword “The Secretary’s Morning Intelligence Summary” of March 29, 1994, which recounts North Korean military officers threatening the U.S. with a possible preemptive strike if circumstances called for it: “This will not be a situation like the Iraq war,” U.S. officials were told. With DNI Clapper’s recent confirmation that Pyongyang has restarted the plutonium production reactor at Yongbyon, revisit the Archive’s 2013 posting on the perpetual struggle to understand North Korea’s motives, featuring more than a dozen indexed and contextualized document.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

Oscar Mejía Víctores Dead at 85: Guatemalan dictator dies as human rights trials resume

February 8, 2016
Oscar Mejía Víctores in 2011 L Photo credit: Prensa Libre/EFE, and in 1983.

Oscar Mejía Víctores in 2011 (L), photo credit: Prensa Libre/EFE, and in 1983 (R).

Oscar Mejía Víctores, Guatemalan army general and former head of state from 1983 to 1986 who presided over some of the most repressive periods in the country’s 36-year civil conflict – first as minister of defense and then as military dictator – died on Monday, February 1. He was 85.

Mejía Víctores was never brought to justice for his alleged connection to human rights abuses. Due to his failing health in the years prior to his death, public prosecutors were forced to drop an indictment they had brought against him for genocide and crimes against humanity, after government doctors declared him physically and mentally incompetent to stand trial in 2011.

But on the same day that the retired general died, two military men who served under him appeared in a Guatemalan courtroom for the opening day of the “Sepur Zarco” case, the world’s first criminal trial of persons accused of sexual violence and enslavement in the context of armed conflict to be heard by a national court. The trial is one of several human rights cases that have advanced in Guatemala since the beginning of this year, signaling a resumption of major human rights prosecutions by a justice system that in 2015 was largely focused on important corruption cases.

Throughout his career, Oscar Mejía Víctores cut a classic figure as a loyal military officer, brutal strongman, and untouchable human rights violator.

It was August 8, 1983, when as defense minister he took power in a coup d’état against his commander in chief, Gen. Efraín Ríos Montt, and became the country’s de facto leader. According to a US defense intelligence report from the time, Mejía was reluctant to assume leadership of the country but was persuaded to do so by the powerful Council of Military Commanders. He went on to rule Guatemala with an iron fist from 1983 until January 1986, when he stepped down following the country’s first election of a civilian president in sixteen years.

A secret October 1985 Defense Intelligence Agency report describes Mejía Víctores initial reluctance.

A secret October 1985 Defense Intelligence Agency report describes Mejía Víctores’ initial reluctance to assume power.

During his regime, hundreds of activists, labor organizers, human rights defenders, doctors, journalists, teachers and students were swept up by security forces in kidnapping operations and held in clandestine military prisons, tortured, and secretly murdered. Some of the disappearances were chronicled in a military intelligence document known as the “death squad dossier,” leaked to the National Security Archive in 1999. Today, the case is the focus of a criminal investigation by the Public Ministry.

He also established a network of militarized villages in the rural highlands modeled on “strategic hamlets” created by the United States during the Vietnam War, where Mayan villagers fleeing the destruction of their communities were forcibly resettled.1

It was the surge in forced disappearances under Mejía Víctores that first caught the attention of US security planners. In a top secret intelligence report written three months after he took power, the CIA noted a dramatic increase in political killings and abductions. “The number of kidnappings,” the report noted, “jumped from 12 in August to 56 in September – the first month of Chief of State Mejía’s rule.” The CIA commented that “the security forces and ultrarightist civilian elements are almost certainly heavily involved.”

An April 4, 1985, State Department cable shows Mejía Víctores charging GAM was "being manipulated by the insurgents".

An April 4, 1985, State Department cable shows Mejía Víctores charging GAM was “being manipulated by the insurgents”.

In the face of his critics, Mejía Víctores was never shy about ridiculing human rights or tarring human rights defenders with a broad brush. He called Guatemalans who had been forcibly disappeared “guerrillas,” and told relatives begging for information that they had probably left the country to start new families in Cuba or to make money in the United States. He declared that members of the national human rights organization GAM (Grupo de Apoyo Mutuo—Mutual Support Group) were “manipulated by the insurgents.” He believed international human rights groups like Amnesty International were guerrilla supporters, and once said that a US member of Congress who warned him about the country’s human rights record sounded “like a member of the EGP” (Ejército Guatemalteco de los Pobres—Guatemala Army of the poor, one of the four principal insurgent groups).

Although Mejía Víctores never explicitly acknowledged his government’s role in carrying out abuses, he told a Guatemalan reporter in 2001, “There’s always violence in an undeclared war.”

From the start of the Mejía Víctores regime, the United States was ambivalent about his leadership. The Reagan administration formally recognized his government the day after the coup. But US officials were secretly dismayed that the former defense minister now ruled Guatemala, in part because of an act of state violence committed months earlier that directly affected US interests.

On February 9, 1983, an employee of the US Agency for International Development (AID) and three associates had been stopped by an army patrol and taken to the main military base in the northwestern department of Huehuetenango, where they were executed. The United States pressured Guatemala to solve the crime, without success. Shortly after Mejía Víctores took power, US Ambassador to Guatemala Frederic Chapin commented in a cable to the State Department, “It should be clear to Washington that it will be virtually impossible to make progress in this matter. Not only was [former Defense Minister] General Mejía the author of the original cover up; but the officers have closed ranks on this issue…”.

Chapins comments from a September 6, 1983, State Department cable.

Chapin’s comments on the murder of a USAID employee and three associates in a September 6, 1983, State Department cable.

Chapin’s concerns were confirmed later that same month, when one of the army officers linked to the murders was promoted to lieutenant in a public ceremony attended by Ambassador Chapin. Chapin left in protest immediately after the ceremony. “The chief of state,” he wrote to Washington, “might just as well have spat in our face.”2

US support for Mejía Víctores was severely tested again just three months after the coup, in November 1983.  Washington sent two emissaries to Guatemala – Assistant Secretary of State Elliott Abrams and Under Secretary of Defense Fred Iklé – to urge the dictator to improve the country’s human rights record. Four days later, the charred bodies of four people, among them two USAID employees, were found in their abandoned car. Ambassador Frederic Chapin cabled Washington that he believed that the incident was “a prompt response” by the regime to human rights pressure from the United States, “The theme being: ‘You can’t talk to us this way; we will show you’.”

But Washington limited its worries about violence under Mejía Víctores to classified communiqués. In public – in congressional hearings, press briefings and official statements – the Reagan administration staunchly maintained its support for Guatemala. At the time, Reagan was fighting a covert war against the Nicaraguan Sandinista regime and in need of allies in the region who would support the anti-Sandinista contras. El Salvador and Honduras already received tens of millions of dollars in US aid, not only to oppose leftists at home, but to provide clandestine support for the contras as well. Guatemala, barred by Congress from receiving military assistance for its egregious human rights record, was the missing piece of the strategic puzzle.

In order to get around congressional restrictions against funding the contras, the US secretly persuaded the Mejía Víctores regime to sign false “end-user receipts” for weapons shipped from third countries such as China and Portugal to Central America. The faked documents made it appear that Guatemala was the purchaser, when in fact the arms were forwarded by the Guatemalan regime to the contra army. As quid pro quo for Guatemala’s cooperation, the Reagan, the administration sought and received $5 million in military equipment – the first military aid granted to the country since 1977.3

The fake.

Top secret March 5, 1985, National Security Council document reveals fraudulent arms transfers to Guatemala.

In his final act in office before turning power over to Guatemala’s new civilian president, Vinicio Cerezo Arévalo, Mejía Víctores issued Decree 8-86, granting a general amnesty to all government officials and members of the security forces for crimes committed from March 23, 1982 (the start of Ríos Montt’s regime) through January 14, 1986, when his government came to an end.4

Although Mejía Víctores himself escaped judicial accountability, human rights crimes committed when he was defense minister and then head of state have come under repeated legal scrutiny. In the past five years, the Guatemalan government has prosecuted paramilitary, police and military personnel for genocide (Ríos Montt), massacres (Plan de Sánchez, Dos Erres), and forced disappearances (Edgar Fernando García). Now, after a lull in human rights cases, the government has resumed its prosecutions.

In January, public prosecutors indicted two sets of military officers for crimes against humanity in two separate cases. In one, 11 military men – including former Army Chief of Staff Benedicto Lucas García, whose late brother Romeo was president of Guatemala in 1978-82 – have been charged for a string of assassinations and forced disappearances linked to the 558 remains found by forensic anthropologists in exhumations on the Cobán military base. During the 1980s, the base was a hub of counterinsurgency activities in the central region of the Alta Verapaces. Today the base is called “CREOMPAZ,” the Spanish acronym for Regional Training Command for Peacekeeping Operations, and serves as the locale where Guatemalan soldiers train to participate in UN peacekeeping missions around the world.

In the second case, four officers were arrested for their alleged connection to the forced disappearance of 14-year-old Marco Antonio Molina Theissen thirty-five years ago. The high schooler’s abduction on October 6, 1981, is believed to have been to be an act of revenge carried out one day after his sister Emma escaped from a clandestine prison on the Quetzaltenango army base, where she had been held for ten days, tortured and raped. Although the Molina Theissen family spent decades pressuring the government for information about Marco Antonio’s fate, he was never seen again.

Finally, on February 1, the trial of former military officer Esteemer Francisco Reyes Girón and former military commissioner Heriberto Valdez Asij opened before the court High Risk Crimes Tribunal “A.” The men are being tried for their role in the forced disappearance of Mayan peasant leaders and for sexual abuse and enslavement of at least 15 Q’eqchi’ women from 1982-83 at a military detachment called “Sepur Zarco” in the department of Izabal.

In 1999, the Historical Clarification Commission of Guatemala (CEH) found that sexual violence was a central tactic in the military’s war against the guerrillas and their presumed collaborators. The CEH’s summary conclusions observed that:

…the rape of women, during torture or before being murdered, was a common practice aimed at destroying one of the most intimate and vulnerable aspects of the individual’s dignity. The majority of rape victims were Mayan women. Those who survived the crime still suffer profound trauma as a result of this aggression, and the communities themselves were deeply offended by this practice.5

According to human rights experts, the Sepur Zarco trial represents the first time a case of sexual enslavement as a war crime has been heard by the country where the crimes took place. Once again, Guatemala has broken new ground in its willingness to initiate judicial proceedings against human rights violators for international crimes.

 


1. U.S. Embassy Guatemala, Summarized Version of the Polos de Desarollo Program, 10/19/84.

2. U.S. Embassy Guatemala, Promotion of Officer Arrested in AID Contractor Case, 9/30/83.

3. Leogrande, William M. Our Own Backyard: The United States in Central America, 1977-1992. Chapel Hill, NC: The University of North Carolina Press, 1998, p. 391.

4. CEH, Guatemala: Memory of Silence, Tomo I, p. 255.

5. CEH, Guatemala: Memory of Silence, Conclusions and Recommendations, p. 35, para. 91.

Ongoing Government-wide Problems Mishandling Classified Material in this Week’s FRINFORMSUM 2/4/2016

February 4, 2016
The NNSA positively evaluated a contractor that had improperly disposed of nuclear secrets for decades.

The NNSA positively evaluated a contractor that had improperly disposed of nuclear secrets for decades.

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.”

Petraeus won't be demoted and Broadwell not under active investigation. Photo: International Security Assistance Force.

Petraeus won’t be demoted and Broadwell not under active investigation. Photo: International Security Assistance Force.

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?”

Aaron Swartz declined a plea bargain in his JSTOR case.

Aaron Swartz declined a plea bargain in his JSTOR case.

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.

Government Censors Aviation Warnings Leading up to 9/11

Government Censors Aviation Warnings Leading up to 9/11

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.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

 

Colbert Uses Declassified Doc to Grill Rumsfeld: “It Is Big”

February 3, 2016
"It is big."

“It is big.”

“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.

Colbert cites declassified document in Rumsfeld interview.

Colbert cites declassified document in Rumsfeld interview, which you can watch here.

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.”

You know what they say about making assumptions.

You know what they say about making assumptions.

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.

U.S. Department of Defense, Office of the Under Secretary for Policy Notes from Stephen Cambone [Rumsfeld’s Comments], September 11, 2001.

U.S. Department of Defense, Office of the Under Secretary for Policy Notes from Stephen Cambone [Rumsfeld’s Comments], September 11, 2001.

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

January 27, 2016
Hillary Clinton with the Blackberry the State Department did not give her.

Hillary Clinton with the Blackberry the State Department did not give her.

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:

  • A very un-merry birthday to-do list.

    A very un-merry birthday to-do list.

    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.
The above cited 36 CFR 1263.22. Official as of October 2, 2009.

36 CFR 1263.22. Official as of October 2, 2009.

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.

The IG report shows that the State Departments FOIA Office shares some of the blame in the Clinton email scandal. Photo credit: Steven Senne/AP

The IG report shows that the State Departments FOIA Office shares some of the blame in the Clinton email scandal. Photo credit: Steven Senne/AP

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.”

Draft 2009 speech Clinton delivered to the CFR withheld entirely by discretionary b5.

Draft 2009 speech Clinton delivered to the CFR withheld entirely by discretionary b5.

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.

A "great" example of overclassification can be found in the DIAs 1975 biographical sketch of General Augusto Pinochet, released in 1999 L and 2003 R. The DIA blacked out large sections of the Sketch on ostensible national security grounds in the second release, including General Pinochet's liquor choices - "scotch and pisco sours".

A “great” example of overclassification can be found in the DIA’s 1975 biographical sketch of General Augusto Pinochet, released in 1999 (L) and 2003 (R). The DIA blacked out large sections of the Sketch on ostensible national security grounds in the second release, including General Pinochet’s liquor choices – “scotch and pisco sours”.

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.”

ISCAP continues to overwhelmingly overrule agency classification decisions.

ISCAP continues to overwhelmingly overrule agency classification decisions.

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

January 21, 2016
Letter from Congress urging the DOJ to disseminate torture report.

Letter from Congress urging the DOJ to disseminate torture report.

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.

feechartUnfortunately, “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.”

Image from "U. S. Fleet Cyber Command / TENTH Fleet, Strategic Plan 2015 – 2020" brochure.

Image from “U. S. Fleet Cyber Command / TENTH Fleet, Strategic Plan 2015 – 2020” brochure.

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.

An enthusiastic redactor-motorist, or something else?

An enthusiastic redactor-motorist, or something else?

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.

Top Secret 1980 survival guide released thanks to a FOIA lawsuit.

Top Secret 1980 survival guide released thanks to a FOIA lawsuit.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!

FOIA Fee Survey Results Are In: Fee System Not Working, but no Consensus on Best Fix

January 15, 2016

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

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

What percentage of agency FOIA costs did Congress intend agencies to recover through FOIA fees? All? Most? Half? Something else? It’s impossible to say since the Office of Management and Budget’s (OMB) FOIA Fee Guidance – from 1987 – which governs when and how all agencies can charge FOIA fees is missing a key word. The outdated-but-still-on-the-books guidance says, “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Fees subcommittee chairman Jim Hogan pointed out the startling omission, which prompted the FOIA Advisory Committee to recommend to the Archivist of the United States that he advise OMB to update its Fee Guidance.

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:

OGIS fee chart.

OGIS fee chart.

  • 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:

feechart

  • 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?

 

Follow

Get every new post delivered to your Inbox.

Join 623 other followers