Senate Judiciary Unanimously OK’s FOIA Bill, Critics of New Cyber Center Say it’s Redundant, and Much More: FRINFORMSUM 2/12/2015

The LA Times Editorial Board calls on Obama to “vocally support” FOIA bills. Photo credit: Alex Wong / Getty Images.

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 U.S. Marshals Service uses small Cessnas like this one to broadcast fake cell phone tower signals. Photo credit: Reuters photo.

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.”

“Fat Leonard” Francis (R) is shown in this courtroom sketch during his appearance in federal court on November 21, 2013. Phot Credit: Krentz Johhnson/Reuters.

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.

Region 6 Needs to Improve Oversight Practices….

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.

Happy FOIA-ing!