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FOIA Reform Hopes to Get Another Shot in 2015, Lynch Avoids Answering FOIA Questions During Senate Nomination Hearing, and Much More: FRINFORMSUM 1/29/2015

January 29, 2015
Rep. Cummings hopes to advance FOIA legislation "quickly." Photo credit: AP

Rep. Cummings hopes to advance FOIA legislation “quickly.” Photo credit: AP.

FOIA advocates are hoping for a better 2015 after the uncontroversial, bipartisan FOIA Improvement Act unceremoniously died at the end of last year’s legislative session – all because House Speaker John Boehner (R-Oh) failed to schedule a vote on it. Promisingly, Rep. Elijah Cummings (D-Md) announced he wants to pass FOIA reform “quickly” this year, and hopes to send FOIA reform legislation to the President by Sunshine Week, the national government transparency event that will take place this March. Citizens for Responsibility and Ethics in Washington’s Anne Weismann is hopeful that introducing the bill earlier in the legislative session will improve the bill’s chances of passing, and Sunlight Foundation’s Sean Vitka says “This time around, everyone is on notice. Last-second concerns — real or fabricated, national security or banking — shouldn’t be used as a stalling tactic designed to kill broadly supported, bipartisan legislation.”

Attorney General nominee Loretta Lynch was grilled by the Senate Judiciary Committee this week. Senator John Cornyn (R-Tx) asked Lynch both about the her current office’s poor FOIA performance and the Obama administration’s “presumption of openness,” and Lynch avoided making any clear statements on either. Lynch did say, however, that she believes the National Security Agency’s surveillance is “constitutional and effective.” Freedom of the Press Foundation co-founder Trevor Timm noted Lynch can immediately assuage transparency advocates’ concerns about her nomination “by dropping the Justice Department’s resistance to the FOIA lawsuits as soon as she is confirmed.”

Google recently disclosed internal documents showing the company gave the US government Gmail “account content” of three WikiLeaks journalists in response to an espionage investigation targeting WikiLeaks founder Julian Assange. The journalists – Sarah Harrison, Joseph Farrell, and Kristinn Hrafnsson – were only informed Google provided the government their “Gmail account content, metadata, subscriber information, and other content” in response to warrants issued in March 2012 on December 23, 2014, two and a half years after Google provided the government with the requested data. WikiLeaks lawyers argued the warrants were in violation of US federal privacy legislation, “which protects journalists and publishers from being forced to turn over to law enforcement their journalistic work product and documentary materials.” Google said the 2012 warrants were subject to secrecy orders, and they were only able to notify the targets once the gag orders were partially lifted.

Sterling was found guilty quickly without Risens testimony. Photo credit: Kevin Wolf/AP

Sterling was found guilty quickly without Risen’s testimony. Photo credit: Kevin Wolf/AP.

Ex-CIA officer Jeffrey Sterling was found guilty this week of leaking classified information on Operation Merlin, a Clinton-era CIA effort to sabotage Iranian nuclear research, to NYT reporter James Risen. The quick trial, long delayed by debates over whether or not the Justice Department would force Risen to testify, inevitably took less than two weeks –notably without Risen’s testimony.

Sen. Dianne Feinstein (D-Ca), former head of the Senate Intelligence Committee who spearheaded its report on the CIA’s torture program and publicly accused the CIA of spying on her staff, is damning a recent CIA panel that recommended no punishment of the CIA officers who spied on Senate staffers. The CIA Accountability Board, a taskforce hand-picked by CIA Director John Brennan, “cleared” the officials of any “wrongdoing,” concluding they acted reasonably in the face of a potential security breach. Feinstein, on the other hand, demanded there be accountability for the spying, and outlined 15 flaws with the Board’s findings, including that it contradicts the CIA’s own Inspector General report that found the agency officials improperly monitored Senate staff, and that “The CIA and the Committee exchanged formal, signed letters in 2009 establishing limits on the CIA’s access.”

Drone that evaded WH radar system after crashing into a tree. Photo Credit: Secret Service.

Drone that evaded WH radar system after crashing into a tree. Photo Credit: Secret Service.

A small, two pound drone recently made it past the White House radar system and Secret Service before ultimately crashing into a tree. The breach raises questions about the Secret Service’s ability to bring down similar devices, and comes on the heels of several significant White House security breaches. The drone – a “quadcopter” – was flown by an off-duty National Geospatial-Intelligence Agency employee.

Drug Enforcement Agency (DEA) documents recently disclosed through the FOIA to the ACLU reveal news of the second secret DEA program in as many weeks. The latest revelation shows the DEA “has initiated a massive national license plate reader program” that connects DEA license plate readers with local law enforcement agencies’ own plate readers around the country (a 2012 Police Executive Research Forum report found that 71% of all US police departments use automatic license plate tracking). According to one undated document, “there were more than 343 million records in the program’s database at one point,” and Customs and Border Protection (CBP) – a component of the Department of Homeland Security – collects data on “nearly 100 percent of land border traffic” and shares its data with the DEA. The revelation comes one year after the Department of Homeland Security (DHS) scrapped its own plan to build a national license plate tracking system to catch fugitive illegal immigrants after the Washington Post reported the program could “contain more than 1 billion records and could be shared with other law enforcement agencies, raising concerns that the movements of ordinary citizens who are under no criminal suspicion could be scrutinized.”

Last week, a year after President Obama promised changes to the government’s handling of Americans’ electronic communications collected and maintained by the National Security Agency (NSA), the White House abandoned plans for a non-governmental third party to hold the phone metadata collected by the agency. The administration did announce, however, that it is still considering a plan that would allow the telecommunications companies themselves to maintain the records rather than the NSA.

The Obama administration recently declassified two 2007 rulings issued by Judge Roger Vinson in response to an ongoing New York Times FOIA lawsuit. The documents show Vinson, who was then serving on the Foreign Intelligence Surveillance Court (FISA), ruled that the Patriot Act empowered the NSA “to collect foreigners’ emails and phone calls from domestic networks without prior judicial approval.” The rulings also shed light on the agency’s “secret moves” regarding the surveillance prior to Congressional approval in August 2007.

Federal judge John Gleeson of the US District Court in Brooklyn “heard a rare constitutional challenge” last week to the government’s warrantless wiretapping of a US permanent resident who pleaded guilty to terrorism charges in 2012. The Justice Department only revealed it had collected the defendant’s communications without a warrant last year under a new policy that requires such disclosures, prompting Judge Gleeson to rule that the defendant could withdraw his guilty plea.

This week’s #tbt document pick is chosen with the recent sentencing of two former Chilean intelligence officials for the 1973 murders of Americans Frank Teruggi and Charles Horman in mind. Teruggi, a student, and Horman, a journalist and filmmaker, were deemed subversives by the Chilean government and later killed in large part because of a “secret investigation” conducted by Ray Davis, a US Navy Captain commanding the US Military Group in Santiago. Davis was indicted for his role in the murders in 2011 in a Chilean court (the judge also requested Davis’ extradition from Florida where he was believed to be living in a nursing home, but his death in 2013 revealed he had been living secretly in Santiago). Today’s #tbt document picks are the key FBI memos that contain Terrugi’s address and requests for investigation into Terrugi based on his association with a West German political activist that were cited extensively in Davis’ 2011 indictment.

Happy FOIA-ing!

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