FOIA Reform Approved by House Oversight Committee, Rep. Issa Warns of Continued Opposition from “Major Banks”, and Much More: FRINFORMSUM 3/26/2015
The FOIA Oversight and Implementation Act of 2015, H.R. 653, was approved by the House Committee on Oversight and Government Reform yesterday. The bill: requires agencies post more documents electronically; strengthens the FOIA Ombuds office, OGIS (which has to date not issued a single FOIA advisory opinion); codifies a presumption of openness; and creates a 25-year sunset for the oft-abused b(5) “withhold it because you want to” exemption. The committee also adopted three amendments to the bill (but none suggested by the National Security Archive and a coalition of other Open Government groups). The first accepted amendment would narrow the scope of what the government can withhold through the b(5) exemption – making it harder to withhold records like DOJ Office of Legal Counsel opinions; the second would require agencies to set up an email address to accept FOIA requests; and the third “would require the government to pay the legal fees of a plaintiff who successfully challenged the government’s withholding of documents in court. Current law gives the courts discretion to award legal fees but does not require it.”
The Senate FOIA reform bill, S. 337, was unanimously approved by the Senate Judiciary Committee in February. The lockstep introduction of both these bipartisan bills is a good sign, and openness advocates are optimistic FOIA improvements will become law –even though the five previous FOIA bills to pass out of committee have died without becoming law.
Last week Rep. Darrell Issa (R-Ca) spoke at the Transparency Caucus Briefing on FOIA reform about last year’s 11th hour FOIA reform death. It was reported that one of the reasons last year’s FOIA Improvement Act was not scheduled to the House calendar was opposition by lobbyists for the Financial Services Industry, even though the bill did not alter Exemption 8, which protects matters that are “contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.” Issa affirmed these reports, saying opposition did come from “major banks, no question at all”, and warned the current bills will face the same opposition.
Both current bills must now pass their respective chambers, be reported out of a conference, probably be voted on again in their respective houses, and be signed by the President for these FOIA improvements to become law.
The most important claim Hillary Clinton made about her use of a private email address and storing the emails on a private server while Secretary of State was that because she sent her official emails to “government officials on their State or other .gov accounts  that the emails were immediately captured and preserved.” Some of the 300 emails Clinton released to a House committee investigating the 2012 Benghazi attack, however, “show that Mrs. Clinton’s top aides at times corresponded with her about State Department matters from their personal email accounts, raising questions about her recent assertions that she made it her practice to email aides at their government addresses so the messages would be preserved.” A recent Department of State Office of Inspector General report casts doubt that the former secretary’s emails would have been “captured and preserved” if they had all been sent .gov accounts anyway, noting that in 2011 State Department employees created 61,156 record emails out of more than a billion emails sent.” In other words, roughly .006% of DOS emails were captured electronically. NARA has sent a letter to the State Department asking the agency to account for Clinton’s use of a private server, if federal records were “alienated”, and what steps the department is taking to retrieve the federal records.
DOJ lawyers argued before the U.S. Court of Appeals for the D.C. Circuit last week that “The federal government had no duty under the Freedom of Information Act to produce emails former Secretary of State Hillary Clinton sent or received on a privately maintained account.” The argument comes in response to Larry Klayman’s motion seeking contempt proceedings against Clinton and one of her former top aides. Justice lawyers Matthew Collette and Catherine Dorsey wrote, “FOIA creates no obligation for an agency to search for and produce records that it does not possess and control”.
The DOJ won the dismissal of a private defamation lawsuit brought by Greek shipping mogul Victor Restis against United Against Nuclear Iran (UANI) by arguing the case could reveal state secrets. UANI consists of high-ranking former government officials and is “best known for its ‘name and shame’ campaigns, which unearth information about Western companies suspected of doing business with Iran.” The DOJ invoked the state secrets privilege in the case, which Restis brought after the group accused him of violating sanctions by exporting oil from Iran, last September, specifically seeking to shield the group’s files, including its donor list. U.S. District Judge Edgardo Ramos asked the government to provide a written argument why it should not “have to publicly explain its reasons for invoking the state secrets privilege” in October. Ramos was apparently swayed by the DOJ’s arguments, ruling this week that a dismissal of the case was appropriate and that there was “a reasonable danger that disclosure of the facts underlying the government’s assertion would in fact jeopardize national security.”
Senators Chuck Grassley (R-Ia) and Patrick Leahy (D-Vt), chair and ranking member of the Senate Judiciary Committee respectively, wrote the Attorney General seeking answers regarding the DOJ’s use of cell phone tracking technology. Specifically, the Senators asked: if DOJ policy permits the use of cell-site simulators to capture the content of communications domestically and if so under what circumstance; has the DOJ tested cell-site simulators and if so to what extent and under what authority; and what DOJ policy governs the testing and deployment of new surveillance technology? The letter comes after reports the U.S. Marshals, a DOJ component, use Stingray technology – small planes “mounted with controversial cell-phone tracking systems” – in five major metro areas, and requires the DOJ to respond by tomorrow, March 27th.
This week marked a proud moment for the Archive and our Southern Cone Project Director, Carlos Osorio. To commemorate the International Day for the Right of Truth, the Embassy of Argentina awarded Osorio a plaque “in recognition for his contribution in the fight for human rights during the Argentine civic-military dictatorship (1976-1983) — Nunca Más”. The plaque was awarded by Ambassador Cecilia Nahón and Catalina de Sanctis Ovando, of the Grandmothers of the Plaza de Mayo.
Recent declassification decisions by a committee representing the Department of Defense and Department of Energy have simultaneously advanced and set back the cause of transparency for the history of the U.S. nuclear posture. In response to a request by the Archive, the Formerly Restricted Data Declassification Working Group (FRD DWG) have declassified the numbers, in the thousands, of nuclear weapons carried on U.S. Navy surface ships during the Cold War, from 1953 to 1991. Yet, they denied a related request—for declassification of the numbers, which also ran into the thousands, of U.S. nuclear weapons deployed to NATO Europe during the Cold War.
Formerly Top Secret declassified documents posted recently by the National Security Archive detail the CIA’s conflicts with the NSA and the military over its signals intelligence (SIGINT) role. The 40 documents shed light on the CIA’s regular struggle with not only Soviet counterintelligence and international upheavals like the Iranian revolution, but overlapping missions and domestic budgetary battles with the NSA and other entities during the height of the Cold War.
A new memoir by one of the few surviving participants in the U.S. H-bomb project provides fresh information and insights into the production of the world’s first thermonuclear device. In an exclusive essay and selection of declassified documents provided to the National Security Archive and posted on the Archive’s website, Dr. Kenneth W. Ford brings to light intriguing pieces of the H-bomb’s early history, including personal aspects such as the brittle relationship between physicists Edward Teller and Stanislaw Ulam and their feud over who came up with one of the central theories leading to the H-bomb’s development.
In honor of Carlos Osorio’s deserved recognition by the Argentinian Embassy, this week’s #tbt document pick is a December 13, 2006, Department of State WikiLeaks cable describing Osorio as ““one of the most important declassifiers of the State Department’s private documents.” The cable goes on to accuse the Archive of “dredging up the past”. As Osorio’s award shows, however, there is a marked difference between dredging up the past and fighting for human rights accountability.