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DOJ Updates FOIA Regulations, Finding “No-Fly” List Status Now Possible, and Much More: FRINFORMSUM 4/16/2015

April 16, 2015
Melanie Pustay's office issued (somewhat surprisingly) good new FOIA regulations for the DOJ.

Melanie Pustay’s office issued (somewhat surprisingly) good new FOIA regulations for the DOJ.

The Department of Justice (DOJ) updated its FOIA regulations last week in response to public comments regarding its 2011 draft FOIA regulations. In 2011 the DOJ proposed changing their regulations to allow some federal agencies to falsely state that no records exist when the requested documents fit within certain guidelines, thereby authorizing agencies to willfully deceive FOIA requesters on a case-by-case basis. The proposed changes spurred serious concerns from the open government community about the necessity and, more importantly, the legality of such a rule change. OIP Director Melanie Pustay responded to the criticisms during a March 2012 Senate Judiciary Committee hearing by saying, “some people misinterpreted what we were trying to do, misconstrued some of the provisions, and didn’t necessarily understand some of the fee guidelines.” The DOJ’s latest regulations, happily, do not contain such provisions, and instead contain improvements, including explicitly stating that news organizations operating solely on the Internet qualify as “representatives of the news media,” making them exempt from search fees.

The DOJ recently submitted documents in a court filing in conjunction with a lawsuit brought by the American Civil Liberties Union (ACLU) that state U.S. citizens and residents can find out if they are on the “no-fly” list, and “possibly” obtain a summary of the reasons why. Prior to this, individuals could appeal to the Department of Homeland Security (DHS) if unable to board a plane, but could not find out their status on the “no-fly” list, a process the case’s judge called “wholly ineffective.” An August 5, 2014, Intercept article, which cites classified government documents concerning the National Counterterrorism Center’s databases, shows, among other things, “that 47,000 people — including 800 Americans — were on the government’s no-fly list, while an additional 16,000 — including 1,200 Americans — were on the ‘selectee’ list.”

Increased attention is being paid to the FBI’s use of non-disclosure agreements to prevent police forces across the U.S. from revealing their use of “Stingray” cell phone tracking technology. According to The Guardian, non-disclosure agreements that have come to light in Florida, New York and Maryland “show federal authorities effectively binding local law enforcement from disclosing any information – even to judges – about the cellphone dragnet technology, its collection capabilities or its existence. In an arrangement that shocked privacy advocates and local defense attorneys, the secret pact also mandates that police notify the FBI to push for the dismissal of cases if technical specifications of the devices are in danger of being revealed in court. The agreement also contains a clause forcing law enforcement to notify the FBI if freedom of information requests are filed by members of the public or the media for such information, ‘in order to allow sufficient time for the FBI to seek to prevent disclosure through appropriate channels’.”

Senate Intelligence Committee chair Sen. Richard Burr (R-NC) has agreed to continue the ongoing review of every U.S. intelligence program begun by the previous chair, Sen. Dianne Feinstein (D-Ca). The review was launched in October 2013 after documents leaked by former National Security Agency (NSA) contractor Edward Snowden revealed the agency was monitoring German Chancellor Angela Merkel’s cellphone, is scheduled to be completed by September 2015, and aims to “improve congressional oversight of the government’s sprawling global spying effort.”

The New York Times recently obtained emails showing the FBI agent that led the investigation into four of the seven Blackwater contractors involved in a 2007 shooting in Baghdad’s Nisour Square, which left 17 people dead, “became convinced that political appointees in the Justice Department were intentionally undermining the case.” The records show that senior DOJ officials initially balked at bringing two machine-gun charges against the contractors, which each “carried mandatory 30-year prison sentences”; prosecutors ultimately only brought one machine-gun charge. The four contractors were sentenced this week; one receiving life in prison and the other three receiving 30-year sentences.

The federal FOIA ombuds, the Office of Government Information Services (OGIS), recently published an assessment of NARA’s Special Access and FOIA Program, which processes FOIA requests for archival federal records in the DC area. OGIS found that NARA takes approximately nine months to process simple FOIA requests (fewer than 200 pages), and approximately 3.5 years to process complex ones (for more than 200 pages and most requests that include classified records). The report also contains a lot of sound recommendations, including encouraging NARA (and other agencies) to “regularly provide links to the most recently posted documents either on its FOIA Electronic Reading Room, or on a webpage that has heavy traffic, so the public is aware of recently released documents,” provide the NARA FOIA team with clear information regarding the status of the agency’s FOIA regulations, and explore “how OGIS might be able to assist with strategies for closing some of the oldest pending cases.” Hopefully NARA will incorporate OGIS’ astute recommendations into their FOIA program, as well as other improvements – like ending the wasteful referral and consultation re-review process..

For those DOJ employees that needed reminding.

For those DOJ employees that needed reminding.

The Justice Department recently sent a memo to all of its employees reminding them never to solicit prostitutes. The memo was sent in the wake of revelations that Drug Enforcement Administration (DEA) officers had “sex parties” with prostitutes hired by a Colombian drug cartel. The memo states, “Regardless of whether prostitution is legal or tolerated in a particular jurisdiction, soliciting prostitutes creates a greater demand for human trafficking victims and a consequent increase in the number of minor and adult persons trafficked into commercial sex slavery.”

The CIA has declassified an additional 99 documents on its plan to publish Doctor Zhivago in Russian for first time in 1958. The CIA declassified 130 documents last April concerning the agency’s instrumental role in publishing and distributing Boris Pasternak’s “Doctor Zhivago” in the Soviet Union in an effort to stir political unrest. One document notes, “[t]his book has great propaganda value, not only for its intrinsic message and thought-provoking nature, but also for the circumstances of its publication: we have the opportunity to make Soviet citizens wonder what is wrong with their government, when a fine literary work by the man acknowledged to be the greatest living Russian writer is not even available in his own country in his own language for his own people to read.”

Declassified documents show that NASA has, since its creation in 1958, been involved in furnishing cover stories for covert operations, monitoring Soviet missile tests, and supplying weather data to the U.S. military. Be sure to check out the latest posting on the Archive’s website for the whole story behind NASA’s secret relationship with civilian and national security space programs.

President Eisenhower and Israel Prime Minister David Ben-Gurion during the latter's visit in March 1960 to the United States. (Source: www.jewishvirtuallibrary.org)

President Eisenhower and Israel Prime Minister David Ben-Gurion during the latter’s visit in March 1960 to the United States. (Source: http://www.jewishvirtuallibrary.org)

The latest posting from the Archive’s Nuclear Vault highlights declassified documents concerning the Eisenhower administration’s discovery of the secret Israeli nuclear program. Documents published in this collection shed light on a particularly notable intelligence failure: how Washington missed warning signs that the Israelis had a nuclear project underway, but also how the U.S. belatedly realized what the Israelis were doing, and how Eisenhower and his senior advisers reacted to this discovery.

This week’s #tbt document pick is chosen with Cuba’s removal from the U.S.’s list of state sponsors of terrorism in mind. It is a collection of documents from 1975 on the origins of “baseball diplomacy.” The documents, ranging from unclassified letters to declassified secret cables and high-level State Department memoranda, reveal the efforts of then-commissioner of baseball, Bowie Kuhn, and his counterparts in Cuba, along with aides to Secretary of State Henry Kissinger, to arrange a game between U.S. and Cuban teams in 1975.

Happy FOIA-ing!

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