FACA Surveys, ICE’s “Egregious” FOIA Violations, the FBI’s Convoluted FOIA Search Process, and Much More: FRINFORMSUM 6/25/2015

The FOIA Advisory Committee.

The FOIA Advisory Committee’s subcommittees on both fees and oversight and accountability have each sent out surveys to learn more about their respective issues. The federal FOIA Ombudsman, OGIS, recently reported that the oversight and accountability subcommittee – which the Archive’s FOIA Project Director Nate Jones sits on – issued a survey to each federal agency’s FOIA public liaison (FPL), who are statutorily mandated to reduce FOIA delays, increase transparency, understand the status of FOIA requests and resolve FOIA disputes. While the role of the FPL is “described in an Executive Order (Executive Order 13392, Improving Organization Disclosure of Information) and legislation (the OPEN Government of Act of 2007), the Committee has observed that how FPLs work within a particular agency seems to vary widely.” The subcommittee hopes that the survey results will shed light on what actions FPLs take at individual agencies to fulfill their mandate. For its part, the fees subcommittee sent out a survey to determine how to cut down on both the frustration and the confusion surrounding the administration of FOIA fees. Both surveys are available here.

US District Chief Judge Marsha Pechman found that the Department of Homeland Security’s (DHS) Immigration and Customs Enforcement (ICE) egregiously violated the FOIA when it ignored Prison Legal News’ request for information on the telephone costs for immigrant detainees. ICE ignored two consecutive FOIA requests from the advocacy organization despite FOIA’s clear instruction that agency’s have 20 business days to respond to requests, absent clearly stated extenuating circumstances. Judge Pechman awarded Prison Legal News attorneys fees and costs for pursuing the lawsuit.

A FOIA lawsuit seeking FBI records related to the 1995 Oklahoma City bombing is shedding light on the FBI’s convoluted FOIA search process. According to the Reporter’s Committee for Freedom of the Press (RCFP), “The latest testimony from the Trentadue case shows that reporters and members of the public who send FOIA requests to the FBI might not know that there are a myriad of different records ‘systems’ that they need to specify in order for a comprehensive search to take place.” These systems include the Automated Case Support system (ACS), which searches the FBI’s Central Records System. The ACS itself is split into three parts: the Investigative Case Management system (ICM), the Electronic Case File (ECF), and the Universal Index (UNI). The RCFP notes that “the ICM is a case management tool for documents involved in an ongoing investigation. The ECF is broader and contains all FBI law enforcement documents uploaded to the CRS except for some aged documents, or documents not uploaded for unknown reasons. Importantly, the ECF searches the text of the documents themselves.” Because the FBI routinely acts in bad faith when responding to FOIA requests and does not search the majority of its records systems unless specifically asked, FOIA requests to the FBI should include language requesting the bureau search all components of the ACS: the ICM, the ECF, and the UNI.

A Foreign Intelligence Surveillance Court judge ruled this week that a public advocate is not needed in cases where “the legal question is relatively simple.” The ruling comes on the heels of the passing of the USA Freedom Act, which “directed that the court, which typically hears only the government’s side of surveillance cases, appoint ‘amicus curiae’ or a panel of technical experts to offer an alternative perspective in ‘novel’ or ‘significant’ cases.” The Cato Institute’s Julian Sanchez said of the ruling, “I’m a little worried. If the point is to ensure the court is hearing a different perspective, whether the [amicus provision] kicks in shouldn’t depend on whether an issue seems obvious before the court has heard any counter arguments.”

Project CAMBERDADA.

WikiLeaks released documents this week showing the National Security Agency (NSA) has spied on the last three French presidents. The documents detailing the snooping include “summaries of conversations between French officials on the global financial crisis, the future of the European Union, ties between [French President Francois] Hollande’s administration and German Chancellor Angela Merkel’s government.” The Intercept also reported this week that documents leaked by former NSA contractor Edward Snowden show that the NSA and its British counterpart, the GCHQ, tried to compromise anti-virus software to track users, and tracked the email traffic of anti-virus companies “for reports of new vulnerabilities and malware” as part of Project CAMBERDADA.

The Obama administration announced a change in its hostage policy this week, noting that the Department of Justice will not prosecute families who raise ransom money for Americans who have been taken hostage overseas. The change is announced as part of a larger overhaul to the US’s hostage policy, which has been criticized for being dysfunctional and disjointed. The overhaul does not include the appointment of a “hostage czar,” an idea that had been broached to lead the multi-agency response to hostage crises. Instead, the administration announced the creation of a “fusion cell” that will be housed at the FBI and report to the White House through the National Security Council.

While the Senate Intelligence Committee reported last year that US Bureau of Prisons (BOP) officials visited a secret CIA prison in Afghanistan, the BOP responded to an ACLU FOIA request stating that it had no documents on the trip. BOP’s response to the FOIA request is confounding, considering the SSCI reports that BOP officials were “wow’ed” by the tour, having “never been in a facility where individuals are so sensory deprived.” The ACLU appealed the denial, arguing that “It’s completely implausible, we’re talking about federal employees traveling to an active war zone, making an inspection of a detention facility, making recommendations and training employees of another federal agency.” The Bureau of Prisons, unlike law enforcement and intelligence agencies, does not have the authority to classify records.

A computer glitch that hit the State Department’s system for running security checks on foreign visitors has ground the issuing visas to a halt. The glitch, which is rooted in a post 9/11 security measure that runs automatic scans of biometric data, hit US embassies around the world, and the State Department says “it will take time to catch up with two weeks of backlog, built up at an average of 50,000 visa applications every day.” The State Department attempted to use a backup system for the checks after the problems with the main system were discovered, but found the backup system “damaged and unusable.”

Maj. Gen. Dana J.H. Pittard was reprimanded by the Army for his “excessive involvement” in awarding a $492,000 contract to former classmates. (Tony Gutierrez/AP)

Documents obtained through the FOIA by the Washington Post show that the DOD reprimanded the Army’s deputy commander for operations in the Middle East, Maj. Gen. Dana J.H. Pittard, for his “excessive involvement” in awarding a $492,000 contract to his West Point classmates. The reprimand was issued this February after the Army’s Inspector General conducted a three year investigation, spurred by a whistleblower’s allegations that the general had “abused his authority by awarding lucrative renewable energy contracts to his friends.”

NPR’s Caitlin Dickerson reported this week, relying on documents obtained by the FOIA and interviews, that the Army ran chemical experiments on WWII soldiers according to their race. The DOD declassified documents in 1993 revealing that it had exposed some 60,000 enlisted men to mustard gas and other chemical agents, but concealed that the tests were conducted by race. According to Dickerson, African-American, Japanese-American and Puerto Rican enlisted men served as proxies “so scientists could explore how mustard gas and other chemicals might affect” enemy troops. The white soldiers were used as scientific control groups. One of the documents won by FOIA that contributes to the reporting is a DOD report dated June 20, 1944, entitled, “Tests on the Sensitivity of Whites and NISEI to Mustard Gas and Lewisite (Including Tests for Allergic Sensitization to Mustard Gas Following Experimental Exposure).”

“Tests on the Sensitivity of Whites and NISEI to Mustard Gas and Lewisite (Including Tests for Allergic Sensitization to Mustard Gas Following Experimental Exposure).”

This week’s #tbt document pick is chosen with North Korea’s ongoing, historic drought and potential for increased food shortages in mind. This week’s #tbt pick is an October 2006 posting entitled, “North Korea’s Collapse? The End Is Near – Maybe.” The posting contains 19 FOIA-released documents, many of which are from the State Department’s Bureau of Intelligence and Research (INR), which attempt to answer how the food crisis of the mid-90s would affect North Korea politically and the rationale for supplying food aid.

Happy FOIA-ing!