This morning the House Committee on Oversight and Government Reform’s Subcommittee on Government Operations had its first hearing of the session(!) on “Ensuring Government Transparency Through FOIA Reform.” Witnesses included Miriam Nisbet, former director of the Office of Government Information Services (OGIS), Rick Blum, Director of the Sunshine in Government Initiative, and Fred Sadler, a former FOIA officer for the Food and Drug Administration. Earlier this month, Archive FOIA Project Director Nate Jones outlined why the simultaneous introduction of popular, bipartisan Freedom of Information Act bills in both the House (H.R. 653) and the Senate (S 337) is a good sign for those who want the release of more government documents, more quickly, to more people. Many of his arguments were reiterated by Mr. Blum and Ms. Nisbet throughout the hearing. Mr. Sadler, on the other hand, testified that, “Clearly, the statute is functioning well, in the main” and argued against most of the House bill’s FOIA reforms.1 Below are the National Security Archive’s responses to several of his arguments.
Early in his testimony while discussing possible improvements to the referral process, Mr. Sadler argued that “complaints need to be tempered,” as referrals are a critical part of the FOIA process.
That referrals are a reality in the FOIA process is not up for debate, nor is the fact that referrals are a major factor contributing to FOIA delays. The Society for Historians of American Foreign Relations (SHAFR) argues in its 2014 FOIA Implementation Report that “explicit and specific rules about what can be ‘equity’ information, strictures as to how long a third party agency can hang onto its interests, and guidelines as to whether particular agency interests can impede the general move to declassification” would help fix the referral issue, thereby further improving FOIA wait times and backlogs. The National Security Archive has experienced decades-long FOIA delays due to referrals. One 1983 document was referred to 14 different agencies for a crack at censorship.
Mr. Sadler also expressed concern that codifying a “foreseeable harm” test (the current policy advocated by both the President and the Attorney General) would lead to increased FOIA litigation.
The proposed legislation strengthens the FOIA Ombuds, OGIS, and fixes FOIA loopholes, which will both help to cut down on the fee disputes, lack of communication, and improper withholdings that often lead to litigation. At any rate it is was a bit strange to hear a recently retired FOIA director claim that the Presidential instructions his office was supposed to have been following should not be codified.
Mr. Sadler’s testimony also raised the specter of 508 compliance, arguing that making documents 508 compliant is too costly, too burdensome, and not presently feasible.
According to many inside the government, one of the primary challenges to improving proactive disclosures is ensuring that the posted documents are “508 compliant.” Section 508 has required agencies to ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts since 1998. Despite his protestations, Sadler essentially admitted this at 1:16 in the video. He states that his largest issue is with documents “submitted” to the agency in non-508-compliant format. This is a very small subset of documents, and no reason to torpedo the idea of proactively posting FOIA releases.
Despite arguments that making documents 508 compliant is too burdensome, all documents posted to FOIAonline (by agencies such as the Environmental Protection Administration, the National Archives and Records Administration, the US Navy, and others) are 508 compliant, as are the documents posted by the Department of State. A 2010 Department of Homeland Security guide also shows that making documents 508 compliant is not taxing, and even older paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat. Even if its prohibitive to make older documents that were scanned from paper 508 compliant, there should be, at the very least, no such excuse for digital records.
Sadler and others have argued that posting FOIA releases online is not cost effective. In fact the National Security Archive believes the opposite is true. It’s not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail them to the requester and have them slip them into their desk drawer and forget about them. That, is a waste of resources. The released documents should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track.
Mr. Sadler stated that requiring all agencies to update their FOIA regulations within 180 days of the bills’ passage is inefficient, and countered that allowing the Department of Justice’s Office of Information Policy (OIP) to craft a single, government-wide set of FOIA regulations would be preferable.
Currently, over half of federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.
Additionally, having OIP crafting government-wide regulations would bear watching; OIP proposed FOIA regulations in 2011 that would have — among many other FOIA setbacks — allowed the Department to lie to FOIA requesters, eliminated online-only publications from receiving media fee status, and made it easier to destroy records.
Mr. Sadler also noted that the categories of records that agencies are required to proactively post online are not clear enough, though recent government efforts to post various databases online have been successful.
The E-FOIA Amendments of 1996 explicitly lists several types of records agencies must publish proactively in their electronic reading rooms – including agency FOIA regulations, annual FOIA reports, agency opinions and determinations, policy statements and interpretations, agency FOIA manuals, records “likely to become the subject of subsequent requests” and “frequently requested records,” which OIP defines as records that have been requested three or more times. It is understandably time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breech of the, now nearly twenty-year-old, law. Proactively posting FOIA releases after their first release, however, would solve this problem and undoubtedly help agencies cut down on their FOIA backlogs. There are several agencies that do this to different degrees; the Environmental Protection Agency and several other agencies post their FOIA releases to FOIAonline, and the Department of State posts documents released in response to FOIA requests quarterly.
Finally, Mr. Sadler cryptically warned the Committee against “making determinations based” on media reports on the increase of “certain exemptions” – likely referring to FOIA’s exemption b(5)
Perhaps Mr. Sadler remembers that it was the White House that initially pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with “a presumption in favor of disclosure” with respect to FOIA.
Those times have changed. Widely cited statistics compiled by the Associated Press show b(5) use is at an all time high. It was invoked 81,752 times in 2013 (applied to 12 percent of all of 2013’s processed requests) to deny information. The concern surrounding the increasing use of b(5) – that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public – does not arise solely from the number of times it is invoked, however, but also from mounting evidence that it is increasingly being used as a catch-all exemption.
While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more. President Obama’s adviser John Podesta has even called it the “withhold it because you want to” exemption.
The National Security Archive is thrilled the Committee is eager to tackle FOIA reform early on in this legislative session. This endeavor was helped by the excellent FOIA questions asked by Chairman Mark Meadows (R-Nc) , Ranking Member Gerry Connolly (D-Va), and Representatives Mick Mulvaney (R-Sc), Stephen Lynch (D-Ma), and Thomas Massie (R-Ky). Additional thanks is due to Chairman Darrell Issa (R-Ca), Ranking Member Elijah Cummings (D-Md) and Mike Quigley (D-Il), who introduced this bill. We are confident the FOIA Oversight and Implementation Act is strong enough to overcome its detractors.
1. Mr. Sadler also added a bit of levity to the hearings when he described how the text of a document about energy bar ingredients that initially included the words “allergy inducing” was altered during an American with Disabilities Act compliance measure to errantly read “orgasm inducing.”
After a chuckle, further inspection of this anecdote is bizarre and troubling. Mr. Sadler himself testified that the document in question was a Microsoft Word document which is already digitally readable (ADA and 508 compliant). If that was the case, it’s strange and inefficient that the FDA chose for some reason to re-OCR a file already 508 compliant and make it incorrect.
At any rate, this tale of an “orgasm inducing” energy bar does little to negate the need for robust proactive posting of documents released under FOIA.↩
By Toby McIntosh and Lauren Harper
This article has been crossposted from FreedomInfo.org.
Bills to restrict or prevent the public disclosure of videos taken by police officers wearing cameras are sparking debate in state legislatures around the United States.
Anti-disclosure bills have been offered in half a dozen states, usually by legislators with law enforcement backgrounds.
“Video recordings should not be subject to open records requests,” testified Richard W. Van Houten, Jr., President of the Fort Worth Police Officers Alliance, at a listening session held Jan. 31 by President Obama’s task Force on 21st Century Policing.
The American Civil Liberties Union is weighing in, too, advocating that only the most significant videos be saved for possible release.
Freedom of information advocates dislike this proposal, and counter that existing public records laws already protect against disclosures that would breach personal privacy or interfere with law enforcement.
If the footage isn’t available, “body cam” supporters say, the promise of having silent watchdogs over police-citizen interactions will go unfulfilled.
After the shooting death of 18-year-old Michael Brown last year in Ferguson, Mo., President Obama asked Congress to buy 50,000 police body cameras – for $75 million – to promote accountability in police forces nationwide.
Some body camera pilot programs have shown a decrease in both complaints against police officers and police use of force (88 percent and 60 percent respectively in Rialto, Calif.) Many agree that in theory body cameras are a good idea. In practice, they pose real-world challenges.
Disclosure a Hot Topic
How much body cam footage would be disclosed, and what would be kept confidential, is surfacing as a contentious and complicated issue.
It’s largely settled that state FOI laws, which vary in their details, apply to all public records, including body cam videos, subject to exemptions.
The laws include exemptions to protect personal privacy and preserve the integrity of investigations and prosecutions.
Some guidance as to how they would apply to body cam footage can be derived from the treatment of 911 audio recordings and dashboard camera footage. But the application of state laws to body cam footage is undeveloped and unlitigated.
Although a vehement backlash against disclosure has emerged, it is premature to predict whether restrictive bills will pass, FreedomInfo.org, was told by activists on both sides.
Rule for Body Cams Use Will Affect Disclosure
Many policy choices to be made about what will be filmed, which in turn will affect what might be disclosed.
“This a very tough issue and is one that will become more of an issue,” said Lindsey Miller, an author of a comprehensive report on body camera policies by the Police Executive Research Forum (PERF).
The report observes, “A police department that deploys body-worn cameras is making a statement that it believes the actions of its officers are a matter of public record….” PERF is a research and policy organization in Washington whose members are the heads of police departments across the country. The September 2014 report was supported by the U.S. Department of Justice’s Office of Community Oriented Policing Services.
In hundreds of local jurisdictions, decisions are being made about the use of body cams, often with questions of privacy in mind.
Among the issues are:
- whether cameras should be turned off before an officer enters a private residence without a warrant,
- whether video-taping should be continuous,
- when should cameras be turned off,
- whether subjects need to be informed they are being taped,
- how to prevent manipulation of the footage and
- how long to retain the videos.
Once these decisions are made and cameras are rolling the policies on disclosing the videos are governed by state freedom of information laws.
“Most of these laws were written long before law enforcement agencies began deploying body-worn cameras, so the laws do not necessarily account for all of the considerations that must be made when police departments undertake a body-worn camera program,” according to the PERF report.
In some states, notably New York and North Carolina, provisions designed to protect police officers are likely to prevent the release of body cam videos.
In Los Angeles, the police chief says he won’t release video footage, setting up a likely confrontation with disclosure advocates.
OGIS Director Vacancy Announcement Finally Posted, the Difference Between Fee Categories and Waivers, and Much More: FRINFORMSUM 2/26/2015
The National Security Archive is pleased that the vacancy announcement for the director position at the Office of Government Information Services has finally been posted. The position, which heads the small federal office responsible for providing FOIA mediation and compliance services for the entire federal government, had been left unfilled and without a call for applicants since Miriam Nisbet retired at the end of November. Archive FOIA Project Director Nate Jones noted his “extreme concern” that the FOIA watchdog remained director-less at the most recent FOIA Advisory Committee meeting. The announcement is open until March 12, 2015, after which point OGIS will hopefully be able to return to carrying out its pivotal duties at full capacity.
A recent posting by Amy Bennett on OGIS’ blog, The FOIA Ombudsman, provides a great refresher on the difference between FOIA fee categories and fee waivers. The article contains a useful chart that breaks down the different requester categories and their associated fees. The key takeaway from this posting 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” (in FY2013 fee waivers were granted to less than one per cent of FOIA requesters!). The OGIS posting misses, however, that, pursuant to Section 6(b) of the OPEN Government Act of 2007, agencies in most cases 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.1
McClatchy News obtained a Pentagon Inspector General (IG) report through the FOIA that “underscores the problem that intelligence and defense workers face in bringing malfeasance to the surface.” The Pentagon IG investigated former National Security Agency (NSA) employee and whistleblower Thomas Drake’s claims of agency retaliation in the wake of his leak of classified information on surveillance programs. Drake was charged in 2010 under the Espionage Act with 10 felony counts of unlawful retention of classified information, only to have all charges dropped a year later, but not until his career had been torpedoed. Drake claims he was subjected to a decade’s worth of agency retaliation, but the IG report inexplicably only investigated two, “before finding no evidence of retaliation.”
A FOIA request filed by Greenpeace has won the release of documents showing Harvard-Smithsonian Center for Astrophysics scientist Wei-Hock Soon, one of the most frequently cited scientists claiming that greenhouse gas emissions do not contribute to global warming, has received $1.2 million in funding from the fossil fuel industry over the last decade. In that time Soon has regularly avoided citing the conflict of interest in his scientific papers, appearing to violate “ethical guidelines of the journals that published his work” in at least eight cases. The documents show Soon described many of these papers, as well as his Congressional testimony, as “deliverables” when communicating with his corporate sponsors.
Several weeks ago Congressman Jason Chaffetz “reviewed heavily redacted emails and other documents VICE News” obtained in response to a FOIA request, ultimately calling a House Committee on Oversight and Government Reform hearing over what he found. The documents show administration officials communicating with Federal Communications Commission (FCC) chair Tom Wheeler about President Obama’s net neutrality policy.
In responding to VICE’s FOIA request, the FCC, in what the agency said was strict adherence to DOJ guidelines mandating agencies don’t unilaterally declassify documents concerning other agencies, consulted with the White House about whether or not the emails between the administration and the agency should be released. Archive FOIA Project Director Nate Jones notes the FCC’s understanding of the law is a “bit off,” as the White House is not a federal agency, and that the FCC was granting the White House “a political privilege” by giving them the opportunity to review the emails. Jones further notes, “FCC FOIA officers are well trained as to what information may be withheld from requests made under the Freedom of Information Act,” going on to say, “Offering White House political hands (who are not trained in FOIA) another, un-required crack at censoring a FOIA request is bad FOIA policy and a poor demonstration of open government.”
The FBI is claiming, with Department of Justice (DOJ) support, that it cannot find the drone privacy impact assessments that it fully redacted in response to a FOIA request six months ago under the “withhold it because you want to” b(5) exemption. MuckRock’s Shawn Musgrave notes the organization initially filed the FOIA for the privacy assessments because “Federal agencies must conduct a privacy impact assessment prior to deploying any technology that collects personal information, courtesy of the E-Government Act of 2002.” Since the FBI has been flying drones since at least 2005, the privacy assessments should address “what information is being collected and why, how it will be used, who will be able to access it, and other basic details.” When the assessments were withheld last year pursuant to b(5), MuckRock filed further FOIA requests for the assessments and documents concerning why they weren’t made public per proper procedure, only to be informed that “the Justice Department confirmed that neither the FBI nor OPCL had been able to find anything despite ‘an adequate, reasonable search for such records.’” After the story of the now-missing privacy assessments broke, the DOJ, in a remarkable instance of “who’s on first,” told MuckRock that “The questions you raised are best addressed through FOIA, and it is my understanding that you sought similar information already through our FOIA office.”
The Privacy and Civil Liberties Oversight Board (PCLOB) recently published a chart “on how U.S. intelligence agencies use a Reagan-era executive order  to collect Americans’ private information,” showing most agency guidelines are woefully outdated. “Most agencies have not revisited their handling of data collection since the early 2000s, and in some cases not since the 1980s.” The chart shows that while the DOD and FBI reevaluated their internal guidelines in 2008, others haven’t in decades, and “the Homeland Security Department, Treasury Department and United States Coast Guard don’t even have 12333-specific rules.”
A robbery trial in Florida, in which the “defense team detected investigators’ use of a secret surveillance tool” resulting in a plea bargain, is drawing attention to police’s increasing reliance on sophisticated surveillance tools. The judge ordered the government to disclose the device – a cell tower simulator designed to capture cell phone signals to pinpoint a suspect’s location – after it was discovered; the state chose to offer the plea bargain instead. According to the Washington Post, the Florida case “is emblematic of the growing, but hidden, use by local law enforcement of a sophisticated surveillance technology borrowed from the national security world. It shows how a gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public and criminal defendants in the dark on how the tool works.”
Documents posted for the first time in a collaboration between the National Security Archive and VICE News provide insight into the U.S. government’s relationship with arms dealer Sarkis Soghanalian, whose larger-than-life deals were so well known that he was inspiration for Nicholas Cage’s character Yuri Orlov in the 2005 film, Lord of War. Check out our top 10 “Merchant of Death” documents here.
This week’s #tbt document picks are chosen with the recent death of celebrated Navy scientist John P. Craven in mind. Craven played an important role in the development of Polaris, the first ICBM to be launched from a submarine, and was allegedly involved in the Hughes Glomar Explorer’s efforts to salvage a Soviet submarine that sunk off the coast of Hawaii. Today’s #tbt picks are a series of six documents from the Digital National Security Archive’s US Nuclear History: Nuclear Arms and Politics in the Missile Age, 1955–1968 collection, and are listed below with a brief description:
- Proceedings of the Special Projects Office- Task II–Monitor and Sponsor the Fleet Ballistic Missile Development Program- 36th Meeting–21, 22 March 1963.
Thirty-sixth meeting discusses missile range/weight, reentry vehicle tests, stellar inertial guidance, submarine range and accuracy improvements needed to obtain hard target kill capacity.
- Proceedings of the Special Projects Office- Task II–Monitor and Sponsor the Fleet Ballistic Missile Development Program, 37th Meeting–23, 24 May 1963.
Reviews command communications, near-surface operation, and A-3 missile developments.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program, 42nd Meeting–26-27 March 1964.
Ignatius Galantin comments on missile flight tests, and John Craven reports on Polaris submarine tender operations; executive session included.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program, 43rd Meeting–27, 28 May 1964.
Forty-third meeting discusses advanced concepts for fleet ballistic missile including slow/quiet submarine, new penetration aids, multiple independently targetable reentry vehicles, stellar inertial guidance, and command, control, and communication improvements.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program. 45th Meeting–30 September 1964, 1 October 1964.
Reports on fleet ballistic missile problems and developments, including possibility of multiple independently targetable reentry vehicles for Poseidon.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program, 46th Meeting–18, 19 November 1964.
Discussion includes review of A-3 missile development.
1.Pursuant to the 2007 OPEN Government Act, agencies cannot charge requesters search fees if the agency fails to meet the statutory deadlines established in Section 6. The amendment further directs that if an agency misses its deadline for requesters not charged search fees under the FOIA — including news media and educational requesters — by virtue of their fee category, the agency is then not allowed to charge duplication fees. ↩
Jack White’s Now Infamous Concert Rider Disclosed under Open Records Request – Not Leaked, CIA Needs 6 Years to Release Already Declassified Documents, and Much More: FRINFORMSUM 2/19/2015
Facebook recently promoted an article in its “trending” section concerning Jack White’s “leaked” tour demands, which included some odd guacamole requirements. News outlets like NPR jumped on the story, promoting the “leaked” angle. Unfortunately, few news organizations bothered to dig deeper; if they had, they would have found the tour demands were released in response to an open records request by the University of Oklahoma’s The Oklahoma Daily in an attempt to find out how much the school was paying for White’s performance, not leaked.
The CIA recently told a federal judge that it will need six years to release agency documents that are already declassified in response to a FOIA request from MuckRock. MuckRock requested the agency’s CREST database of 11.6 million declassified documents that are currently only available onsite at the National Archive’s College Park location in Maryland (about 250,000 pages are available on the CIA’s website), with the goal of placing the entire collection online. The CIA initially said it would take 28 years to release the set, but later announced it could release the documents in six years with only a “spot check” for classified information, again, even though the documents are already declassified. The agency also “insists” on conducting a manual review of the files to remove metadata, and burning all the records onto 1200 CDs even though the records would all fit on a single $60 external hard drive.
A series of documents posted by the National Security Archive in 2013 showing the National Security Agency (NSA) had “operations to disrupt, deny, degrade or destroy” computer information since 1997 (see our #tbt pick below for more) buoys Kaspersky Lab’s hints that the NSA is linked to the elite hacking group known as the Equation Group. Kaspersky Lab, a Russian cybersecurity firm, reported details of the sophisticated hacking group and its long ties to the NSA this week at a conference in Mexico. Kaspersky determined the group found ways to permanently embed surveillance tools on foreign computers and networks, and has tools that are so sophisticated they infect the “firmware” (the embedded software that prepares a computer’s hardware before the operating system starts) – a hack that is beyond the reach of security controls and antivirus protections. Kaspersky “researchers stopped short of saying Equation Group was the handiwork of the NSA— but they provided detailed evidence that strongly implicates the US spy agency.”
The New York Times recently reported that the CIA secretly purchased and destroyed Iraqi chemical weapons from 2005 through 2006 as part of Operation Avarice, which was run out of its station in Baghdad. The operation, which was deemed a nonproliferation success, led to the acquisition and destruction of “at least 400 Borak rockets, one of the internationally condemned chemical weapons that Saddam Hussein’s Baathist government manufactured in the 1980s but that were not accounted for by United Nations inspections mandated after the 1991 Persian Gulf war.”
The US will drastically expand the Department of State’s Center for Strategic Counterterrorism Communications to streamline the US’ anti-ISIS propaganda. The expanded Center will eventually combine the disparate counter-messaging offices at the Pentagon, the Department of Homeland Security, and throughout the Intelligence Community, into one messaging platform. Critics of the Center note its paltry budget – $5 million a year – and that it has existed too independent of other federal agencies working to counter violent extremists.
Nick Rasmussen, the director of the National Counterterrorism Center, suggested before the Senate Intelligence Committee last week that the US’ current offensive against ISIS is not covered by “a 2001 military force authorization, which the White House has touted as its authority for waging war against the Islamic terror group.” Rasmussen said that while the 2001 authorization covered action against Al Qaeda, he was unclear if it applied to current operations. “I would defer to my lawyer friends, but I believe not,” he said.
The Obama administration announced new rules this week that will allow the sale of armed drones to US allies. The rules, which remain classified, mandate the sales of such drones be made on a case-by-case basis, and that recipients agree to the US’s “proper use” principles – promising not to use the aircraft “to conduct unlawful surveillance or [for] unlawful force against their domestic populations.” The long-planned rules aren’t without their critics. In a 2012 letter Senator Dianne Feinstein (D-Calif.) criticized such sales, noting “Despite the best intentions, we will not be able to guarantee that purchasers of U.S. UAVs [drones] will be able to develop the same level of intelligence to discriminate between potential targets,” and the Council on Foreign Relations’ Micah Zenko said drones “lower the threshold for when countries use armed force, and when you have that lower threshold, it can change the calculus of countries.”
The FAA recently published its draft rules governing commercial drone usage. The rules will make it “relatively simple for real estate agents, aerial photographers, police departments, farmers and anyone else to fly small drones for work purposes.” Businesses cannot, however, fly drones at night and must maintain eye contact with them. Drone operators and manufacturers will not be required to certify the drones are safe to fly. The White House simultaneously issued a new Presidential directive that will require federal agencies “to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance.”
In the first ever court ruling on the CIA’s extraordinary rendition program, the European Court of Human Rights ruled that Poland must compensate two suspects who were detained at a CIA secret prison hosted there from 2002 to 2003. It remains unclear if the money – $262,000 – will be transferred directly to the plaintiffs, who are both currently held at Guantanamo.
A bit of good proactive disclosure news from NASA: the federal agency has announced that it will begin requiring all the $3 billion research it funds to be “published under open access rules via its own PubMed Central platform.” The National Institute of Health also uses the PubMed platform to the same ends, in accordance with best practice open government principles.
Nominations for the FOILIES – a contest run by the Sunlight Foundation and the Electronic Frontier Foundation seeking “the most outrageous responses to Freedom of Information Act and state open records act requests” are due Friday, February 20th. The Archive will be racking its collective brain for outstanding FOIA responses, and we encourage others to as well! Submit your FOILIES for consideration to firstname.lastname@example.org with “FOILIES 2015 NOMINATION” in the subject line.
Today’s #tbt pick is chosen with the explosive Kaspersky report in mind, and is a Secret March 3, 1997, document by NSA official William B Black Jr., which notes the Secretary of Defense officially delegated authority to the NSA to develop Computer Network Attack (CNA) techniques. An August 14, 2006, Department of Defense directive defines CNAs as “operations to disrupt, deny, degrade or destroy information resident in computers and computer networks, or the computers and networks themselves.”
The Merchant of Death’s Account Book: Declassified Docs Reveal More Info on Government’s Opportunistic Relationship with Arms-Smuggler Sarkis Soghanalian
Documents posted today for the first time — in a collaboration between Unredacted and VICE News — provide insight into the U.S. government’s paradoxical and opportunistic relationship with arms dealer Sarkis Soghanalian, whose larger-than-life deals were so well known that he was inspiration for Nicholas Cage’s character Youri Orlov in the 2005 film, Lord of War.
Sarkis Soghanalian was the Cold War’s largest arms dealer, made over $12 million a year at his peak, and had his hand in seemingly every major conflict across the globe – with the U.S. government’s tacit approval. His largest weapons deal was a $1.6 billion sale to the Hussein regime at the outset of the Iran-Iraq War that included U.S. helicopters and French artillery, and he sold arms to groups in Lebanon, Libya, Mauritania, and Peru from the 1970s through the 2000s. Soghanalian was nicknamed the “Merchant of Death” for arming so many conflicts, a moniker he dismissed on the grounds that Alfred Nobel was named the same thing for inventing gunpowder, “and then they named it the Nobel Prize.” At one moment the U.S. government indicted Soghanalian for, among other things, wire fraud and violating United Nations (U.N.) sanctions, and freed him another once he provided useful intelligence.
The U.S. relied on Soghanalian’s unique intelligence so much that it kept him out of jail – for the most part. In 1982 he was sentenced to only five years probation for wire fraud in connection with reneging on a 1977 $1.1 million machine gun deal to Mauritania, and a federal judge dismissed all charges against him in 1986 after he was arrested at the Miami International Airport for possession of – among other things – two unregistered rocket launchers. Despite his oftentimes-illegal arms trade, the longest prison term Soghanalian ever served was two years in connection with the 1983 sale of 103 Hughes helicopters and two rocket launchers to Iraq in violation of U.N. sanctions. The initial sentence was six and a half years, but was reduced after Soghanalian helped Americans infiltrate a sophisticated counterfeiting operation in his native Lebanon. Soghanalian said, “When they needed me, the U.S. government that is, they immediately came and got me out.”
According to his October 10, 2011, Washington Post obituary, “He considered himself a fastidious businessman and required proof of his deadly wares’ delivery. Once, from Lebanese rebel fighters, he reportedly accepted human ears floating in jars of formaldehyde for assurance.” He also kept his lucrative business partners healthy, once flying “an American physician to Iraq to examine Hussein’s bad back.” Soghanalian allegedly had a particularly close relationship with President George H. W. Bush, who remarked that Soghanalian’s humanitarian work, which included airlifting supplies to the Soviet Union after a devastating earthquake left tens of thousands homeless, “strengthened the ties that unite mankind.”
After his 2011 death, the Archive filed a series of targeted FOIA requests for documents on Soghanalian to the FBI, the U.S. Central Command, the Defense Intelligence Agency, Immigration and Customs Enforcement, Border Patrol, and the Department of State. The hard work of archivists and declassifiers at these agencies resulted in the declassification of nearly 2,500 pages of documents on the notorious arms dealer, and today Unredacted is posting the ‘top 10’ documents from this trove. The vast majority of these 2,500 documents were disclosed by the FBI, which is a great resource for FOIA requesters interested in files the Bureau may have on someone who has died (FOIA tip: if you are requesting an FBI file like this, be sure to include an obituary in your request).
The documents posted today include:
- Evidence the FBI planned to meet with the CIA, Department of State, the Department of Defense, and at least one other unknown agency, in 1981 to coordinate the investigation into 1977 Mauritania deal.
- Reports on Soghanalian’s close ties with both the Armenian Church and the Armenian Secret Army for the Liberation of Armenia.
- Further details on the cooperation between Soghanalian and various U.S. government agencies (the FBI’s Miami office allegedly had an “excellent rapport” with him, and nearly investigated Newt Gingrich for bribery in 1997 based on Soghanalian’s information).
- Background materials for investigations into Soghanalian for wire fraud and money laundering.
- Bills of sale for his munitions deals.
What remains unclear is who Soghanalian’s primary government contacts were, aside from the FBI’s Miami bureau. Most believe he was a CIA informant, although others argue that Soghanalian’s handlers were primarily from the Defense Intelligence Agency and the White House, in part because Sarkis found “the found the [CIA] largely incompetent… [and] he repeatedly ran into their less than stellar arms buying operations and exposed and embarrassed them.”
Source: FBI Freedom of Information Act release.
In one of the earliest instances of the U.S. intelligence community investigating Soghanalian, this August 16, 1962, FBI Auto Information Disclosure Act report details one of Soghanalian’s early car dealerships. According to the bureau, Soghanalian was flying to Germany to purchase new VWs directly, importing them to the U.S. through Newark, New Jersey, and then shipping them in trailers he owned to his auto dealership, where he sold them in violation of New York State and federal auto laws.
Source: FBI Freedom of Information Act release.
A February 6, 1981, FBI docket of 15 documents translated from French to English concerning United Trade International, one of Soghanalian’s weapons firms, describes the November 16, 1977, sale of 197 heavy machine guns, ammunition, and cleaning kits to the Islamic Republic of Mauritania for $1,153,590. Browning Precision Tool, another Soghanalian-owned enterprise, certified the weapons and ammunition as new on November 2, 1977. Soghanalian later reneged on the agreement, was convicted of wire fraud in 1986, and served a five-year probation.
Source: FBI Freedom of Information Act release.
An earlier November 4, 1980, handwritten FBI “SPIT Request” characterizes the case as a “fraudulent weapons case” in which Soghanalian received $1.153 million and failed to deliver any products. The section of the request stating the desired objective of FBI involvement in the wire fraud investigation is withheld pursuant to the b(3) FOIA exemption.
Source: FBI Freedom of Information Act release.
A January 16, 1981, FBI memo concerning likely French involvement in Soghanalian’s 1977 arms sale to Mauritania, a former French colony. It states, “FBIHQ and USDJ should be aware that all major arms transactions in France are controlled by the French government or conducted with specific French government authorization and that ‘special relationships’ exist between France and former colonial possessions in Africa.”
Source: FBI Freedom of Information Act release.
An Unclassified January 22, 1981, FBI cable concerning a Special Agent from the Miami bureau’s tentative trip to Washington, D.C. According to the document, the purpose of the visit “is to coordinate investigation with the following agencies: 1. CIA, Headquarters, Langley, Virginia; 2. United States Department of State; 3. Department of Defense; 4. [Redacted]. Purpose of coordination visits to CIA, State, and Defense Departments is to review departmental files on subject and ascertain if these agencies have any information which could jeopardize successful prosecution of subject. Purpose of visit [Redacted].”
Soghanalian insisted that despite his line of work, he never acted against U.S. policy interests –in part because constant U.S. surveillance would have made it very difficult. In a 2001 Frontline interview he said, “The Americans knew what I was doing, every minute, every hour. If I drank a glass of water, they were aware of it and what kind of water it was.” While Soghanalian insisted he never acted against U.S. foreign policy goals, in the same interview he said when the U.S. approached him about selling weapons to Iran during the Iran-Iraq War he refused, saying arming “Iran is like riding two horses in a horse race. You can’t do that.”
Source: FBI Freedom of Information Act release.
A Secret January 15, 1988, FBI report on Armenian Terrorist Matters cites Soghanalian’s status as a Knight of Antelias – the highest award of the Armenian Church. The document also details land purchased by Soghanalian in Ft. Lauderdale, Florida to build a monastery, as well as his contributions to a monastery in Armenia. The source cited in the report further notes that Soghanalian made appearances on the West Coast on behalf of the Hunchaks and Dashnaks, the Social Democrat Hunchakian Party and the Armenian Revolutionary Federation respectively.
Source: FBI Freedom of Information Act release.
A Secret January 8, 1988, FBI memo iterates that the Miami Division has “an excellent rapport with Sarkis Soghanalian and could freely discuss with him his association and knowledge of the Armenian Hunchak party and the independent visit of Armenian Pope Vacker I to Canada.”
Soghanalian’s relationship with the Miami bureau was so close it nearly led to a 1997 investigation of Speaker of the House Newt Gingrich for bribery. According to Sarkis, he informed the Miami bureau that Gingrich’s wife Marianne said in a 1995 meeting that for $10 million she could convince her husband to lift Iraqi sanctions, allowing Soghanalian to collect on the $80 million debt Saddam owed him. The investigation never went forward, however, because there was not enough evidence to support Mr. Gingrich having any knowledge of the plot.
The Secret 1988 memo also notes that in “late 1987, Sarkis played a critical role in an attempt to transport former president Ferdinand Marcos from Honolulu, Hawaii to the Philippines in a possible coup attempt.”
Source: FBI Freedom of Information Act release.
A Secret, undated FBI memo states on April 16, 1985, a source informed the bureau that he put Sarkis in contact with Bell Helicopter, and that Soghanalian was providing Iraq with 45 Bell 214ST helicopters at a cost of $4,000,000 each. The source also says that Soghanalian is “well protected and connected with the U.S. government. His contacts are [redacted].”
Source: FBI Freedom of Information Act release.
A January 8, 1999, FBI transcription of an interview with an unidentified suspect in connection with a multi-million dollar wire fraud case that concerns the suspect’s fraudulent cashing of a $3,000,000 cashier’s check. During the course of the interview, the suspect says he visited Soghanalian to cash the check because Sarkis was “very wealthy,” and claimed “Saddam owes [Soghanalian] 95,000,000 for the weapons he sold to Iraq.” Soghanalian said he could cash the check “no problem,” but that he would have to do so in Europe due to tax troubles in the U.S. Soghanalian was arrested in 2001 for his participation in the check scheme, but was released once he revealed the CIA’s support of Peruvian intelligence chief, Vladimiro Montesinos, and his orchestration of a plot that saw 10,000 assault rifles (purchased from Soghanalian under the belief they were intended for the Peruvian military) diverted to the Revolutionary Armed Forces of Colombia (FARC) – a U.S. designated terrorist organization.
Document 10: Department of Justice letter to the Acting Chief of the DOJ’s Internal Security Section Criminal Division from U.S. Attorney Alejandro Mayorkas, “Subject: Search Request re: Sarkis Soghanalian,” June 2, 1999.
Source: FBI Freedom of Information Act release.
A June 2, 1999, Department of Justice memo summarizes the check scheme as follows: “A number of individuals would recruit various individuals to steal bank cashier’s checks from banks and to convert checks into cash by conducting a series of monetary transactions at casinos and other financial institutions. At least two such checks were stolen from a bank made payable in the amounts of $300,000 and $3 million. The $3 million cashier’s check was fraudulently made to T.I.D.R., a company believed to be controlled by Soghanalian, who attempted to cash the check at a bank in Paris in August 1995. Through various co-conspirators who have cooperated with the government, and through other channels, we have learned Soghanalian has provided information to the government in the past…In this regard, this office requests that you ask the relevant components of the intelligence community to conduct a search of Sarkis Soghanalian’s files to determine whether Soghanalian has had or currently has any relationship with any intelligence agency and whether any payments (or other benefits or promises) have been made to him.”
Senate Judiciary Unanimously OK’s FOIA Bill, Critics of New Cyber Center Say it’s Redundant, and Much More: FRINFORMSUM 2/12/2015
The Senate Judiciary Committee unanimously approved the FOIA Improvement Act of 2015 last week, and the next step is a vote on the Senate floor or passage via unanimous consent. Both the Senate and the House recently reintroduced bipartisan FOIA legislation containing improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, and strengthening the FOIA ombuds office. A great LA Times Editorial recently noted that the upgrades in both bills are a step in the right direction that deserve the Obama administration’s “vocal support” to help get more documents to more requesters more quickly.
The Sunlight Foundation recently scored a big win for open government. In response to its 2013 FOIA request and FOIA lawsuit, the Office of Management and Budget (OMB) announced it will release what is thought to be the largest index of government data in the world – federal agencies’ Enterprise Data Inventories. The EDI’s “are comprehensive lists of a federal agency’s information holdings” and will provide an “unprecedented view” into data held across US. While noting there is no guarantee the EDI’s will contain all the information mandated by President Obama’s executive order concerning the indexes, the Sunlight Foundation commended the OMB for recognizing “that open data is worth the work it takes to disclose” them. Too bad it took the threat of legal action to force OMB to release this treasure trove of Open Government information.
This week the Obama administration announced the creation of a new agency – the Cyber Threat Intelligence Integration Center – whose “mission will be to fuse intelligence from around the government when a crisis occurs.” The new agency will be modeled after the National Counterterrorism Center, will be part of the Office of the Director of National Intelligence, will begin with a staff of 50 from agencies including the NSA and the FBI and others, and have a budget of $35 million. Critics of the center argue that several organizations dedicated to monitoring and analyzing cyber threats already exist, and the focus should be on improving their performance – not creating more bureaucracy. Former White House cybersecurity coordinator Melissa Hathaway noted, for example, that “The Department of Homeland Security, the FBI and the National Security Agency all have cyber-operations centers, and the FBI and the NSA are able to integrate information.”
Privacy advocates are drawing attention to a “gaping” loophole in the modest changes President Obama recently announced to the Intelligence Community’s (IC) surveillance practices, changes that include a three-year time limit on the gag orders contained in the FBI’s national security letters (NSL) – which currently do not require any judicial oversight. Critics argue the new time limit has few teeth, and that “FBI agents can essentially write themselves a permission slip to keep a national security letter secret past the deadline, as long as they receive approval from supervisors.” The Electronic Frontier Foundation’s (EFF) legal fellow Andrew Crocker notes, “This exception is essentially full discretion to FBI officials.”
The Department of Justice Inspector General recently issued a classified report on the FBI’s activities under Section 215, entitled “The Federal Bureau of Investigation’s Use of Section 215 Orders: Assessment of Progress in Implementing Recommendations and Examination of Use in 2007 through 2009.” The DOJ IG announced it will “issue a public, unclassified version of the report, with any necessary redactions, at the conclusion of a separate and final classification review currently being conducted by the FBI.”
The EFF filed a FOIA lawsuit this week for records on the US Marshals’ harvesting of data from American cell phones from “stingrays” – small planes “mounted with controversial cell-phone tracking systems.” Last year the Wall Street Journal revealed the Marshals collect “large amounts of data from Americans’ cell phones through devices mounted on airplanes in an effort to locate fugitives” as part of a program that is run out of five unidentified large metropolitan areas. The Department of Justice refused to either confirm or deny the Journal’s reports.
A bipartisan group of Senators recently filed a friend-of-the-court brief supporting the New York Times and ACLU’s FOIA lawsuit seeking documents related to the DOJ’s legal bases for the 2011 targeted killing of three Americans in Yemen. Sens. Ron Wyden (D-Or), Rand Paul (R-Ky), Jeff Merkley (D-Or.), and Martin Heinrich (D-NM) wrote the court that they were concerned by the executive branch’s efforts to frustrate the FOIA, and argued “the government should not be creating a body of ‘secret law’ concerning the extrajudicial killing of American citizens.”
John Kiriakou, the CIA’s former director of counterterrorism operations in Pakistan who was charged with leaking the name of a covert CIA agent to a reporter under a 1982 law making it a crime to publicly identify covert CIA agents, has been released to home confinement. Kiriakou remains the only government official to ever have been charged in relationship to the agency’s torture program – ostensibly for discussing it publicly –, and “is one of eight current or former government employees prosecuted by the Obama administration for disclosing secrets to reporters; only three such cases were prosecuted under all previous presidents.”
The Environmental Protection Agency (EPA) partially recalled documents – twice – released in response to a FOIA lawsuit for information concerning some of the nation’s largest waterway polluters after industry complaints. The recalls took place after a 2013 court case ruled in favor of several NGOs seeking the records and against the American Farm Bureau Federation and the National Pork Producers Council — finding the firms couldn’t prove they were harmed by EPA releasing the requested records. The EPA released the data after the court’s ruling, only to ask all of the records back after industry complaints (most of the NGOs complied, but at least one did not). The EPA re-released the data, only to ask for it back yet again after yet more complaints, until finally releasing a “subset of data that largely conformed to industry’s demands.”
The Navy announced this week it censured three admirals in connection with a far-reaching bribery scandal involving Malaysian contractor “Fat Leonard” Glenn Francis, who pleaded guilty last month to “bribing ‘scores’ of Navy officials with prostitutes, envelopes stuffed with cash, luxury travel and other enticements in exchange for classified information that he used to cinch federal contracts.” The admirals’ alleged misconduct occurred in 2006 and 2007 and included accepting extravagant dinners and gifts. What’s being described as the largest corruption scandal in Navy history is poised to grow, as Francis begins cooperating with government investigators.
This week’s #tbt document pick is chosen with the EPA’s sometimes bizarre-to-bad FOIA practices in mind, and concerns a 2010 EPA IG report that the agency “intentionally stopped keeping records concerning potentially hazardous landfills in New Mexico in order to circumvent the disclosure requirements of the Freedom of Information Act.” An interview with an EPA employee documented in the IG report details the agency’s discontinuation of “record keeping in favor of undocumented phone calls and conversations to prevent the production of documents [which could have been requested through the Freedom of Information Act].” Nate Jones notes that the silver lining in this case was “that the EPA Inspector General took an active role in enforcing proper FOIA policies.” The Archive and the FOIA Advisory Committee are currently collecting and posting oversight reports such as this. Send them here.
The FOIA Advisory Committee, established by the second Open Government National Action Plan and tasked to “advise on improvements to FOIA administration,” held its third meeting on January 27th (video streaming is available here and here). The Committee consists of ten government and ten non-governmental FOIA experts – including the Archive’s FOIA Project Director Nate Jones – and previously identified proactive disclosure, fee issues, and oversight and accountability as their primary focus areas. Their latest meeting – which was not live streamed unlike previous meetings despite the Committee’s charge to help “modernize” the FOIA – was dedicated to subcommittee reports on these issues, with highlights including the proactive disclosure subcommittee challenging agencies to identify instances where documents could not be made 508 compliant, and another rousing conversation regarding fee categories.
It’s worth noting before delving into the details of the meeting that it was chaired by acting Office of Government Information Services (OGIS) director, Nikki Gramian, who is temporarily replacing Miriam Nisbet, who retired at the end of November. Since Nisbet’s retirement OGIS has been unable to hire, or even post a call for applicants to apply for the director position. Nate Jones voiced the Archive’s “extreme concern” that the FOIA watchdog remains directorless, and called for action so that OGIS can continue not only facilitating the FOIA Advisory Committee, but providing its crucial role providing mediation and compliance services at full capacity. Hopefully OGIS will soon be able to begin the hiring process and continue carrying out its pivotal duties, which benefit FOIA requesters and processors everywhere and help symbolize the White House’s commitment to its NAP and open government.
The Federal Communication Commission’s David Reed, speaking on behalf of the proactive disclosure subcommittee, dedicated much of his report to the challenges of identifying high-value types of records for proactive disclosure. Reed noted the most widely available tool for determining what records were most requested to help identify high-value records are agency FOIA logs, however there is currently a wide variety in both quality and depth of information available in these logs, with some agencies still not making them available. Reed solicited agency help in finding a robust data set to work with to identify key categories of documents, requests, and requestors, in order to make concrete recommendations about where to begin with proactive disclosure in order to have the largest impact with the least effort.
Reed also dedicated time addressing proactive disclosure with accessibility under Section 508. Reed noted that Section 508 has required agencies to ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts since 1998. Therefore, most records the government produces should already be 508 compliant. Agencies, however, routinely argue that making documents 508 compliant is too burdensome – even though agencies including the Department of State and all the agencies that participate in FOIAonline routinely demonstrate otherwise, regularly posting their records online and in full compliance with Section 508.
To help address this problem, Reed put forth a Straw Man proposal, challenging agencies to cite specific instances where documents could not be made 508 compliant, in order to help troubleshoot such instances going forward and eliminate 508 compliance concerns as a barrier to access. Any agency FOIA shop with legitimate 508 compliance concerns not yet addressed that the committee is missing should send them here.
The subcommittee addressing fee issues underscored the need to address often ill-defined fee categories, which are confusing for both FOIA officers and requesters. Many inside the requester community believe charging fees based on ill-defined requester categories can be a ploy by agencies to discourage FOIA requests, while FOIA officers often argue fees are a necessary tool to encourage requesters to narrow the scope of their requests and to discourage “extreme” requesters. The subcommittee again noted the existence of much fee-related acrimony that seemed to underscore the need for uniform fee standards, if little else. Again, agencies recoup less than 1% of the total costs related to the government’s FOIA activities through FOIA fees. As Nate Jones points out, Congress may be moving faster than the Committee on one fee issue. The Senate’s FOIA reform bill, S 337, closes a fee loophole that some agencies have created; clearly reaffirming that agencies may not charge non-commercial “search and review” fees if they miss either their 20-day deadline for processing a FOIA request, or the 10 day extension granted for “unusual” requests.
A brief discussion also took place concerning the applicability or necessity of having a provision in the FOIA that would categorize certain requesters or requests as “extreme,” though it was ultimately decided the time spent identifying such requests would be too time-consuming, and the potential for agency mischief to be too high, for such an endeavor to be useful. The fees conversation stirred up quite a thread on the FOI-L listserv.
The oversight and accountability subcommittee announced it has begun compiling a list of previously released reports on agencies’ compliance with the FOIA in an attempt to identify what current authorities for oversight exist, and areas where there are opportunities for additional oversight. The list is available on the National Security Archive’s website, and the subcommittee encourages members of the public to submit reports that the subcommittee might have missed, and help studying the content of the reports. The subcommittee also reiterated its suggestion of evaluating past litigation review efforts to determine if another review is necessary to cut down on litigation and increase administrative solutions to FOIA disputes.
This is a crucial step as the Department of Justice’s (DOJ) current stance on FOIA disputes appears to be a “defend everything” one. While the 1993 FOIA litigation review “of the merits of all pending and prospective FOIA litigation cases in accordance with the Department’s new FOIA policy standards” conducted by Attorney General Janet Reno led to the “complete resolution” of more than a dozen FOIA lawsuits, there has been no evidence that the Department of Justice has conducted a similar review since the beginning of the Obama administration. Additionally, despite a pledge from DOJ Office of Information Policy (OIP) director Melanie Pustay to provide the Senate Judiciary Committee a list of all FOIA cases that the DOJ has refused to defend, no such list has been presented to the public. Conducting a full litigation review would go a long way to strengthen the government’s and the Department of Justice’s commitment to FOIA.
All documents discussed during the meeting are available here. The Committee’s next meeting will be held April 21, 2015.