House Committee Plans September FOIA Vote, New OGIS Head, and Much More: FRINFORMSUM 7/23/2015

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

The House Committee on Government Oversight and Reform chair, Rep. Jason Chaffetz (R-Utah), who earlier this year told the Department of Justice’s Office of Information Policy (OIP) Director Melanie Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented, informed the National Journal that he plans to have a committee vote on a strengthened FOIA bill in September. According to the Journal, the committee is looking to tighten the bipartisan bill, H.R. 653, by identifying “ways to make agencies face consequences for failing to comply with FOIA requests, and reduce the number of exemptions that agencies can use to justify withholding information.” The bill currently amends the FOIA in two key ways: it codifies both that agencies cannot use FOIA’s “withhold it because you want to” Exemption 5 to withhold information that is older than 25 years, and states that “records that embody the working law, effective policy, or the final decision of the agency” cannot be withheld under that same exemption.

Jim Holzer, the chief FOIA watchdog at the Department of Homeland Security, will take over as the head of the federal FOIA ombuds office, the Office of Government Information Services (OGIS) – and not a moment too soon. Prior to the announcement of Holzer’s appointment, which was made at this week’s Federal FOIA Advisory Committee meeting, the position for leading the small federal office, which is responsible for providing FOIA mediation and compliance services for the entire federal government, had been left vacant for six months. The Archive looks forward to continuing to work with the FOIA ombuds office under Holzer’s direction.

FreedomInfo.org’s Toby McIntosh recently posted an excellent article examining one of the most controversial aspects of the recently announced “Release-to-One: Release-to-All” pilot project, namely whether or not “first requesters should get a priority look at the documents released before they are made available to the public.” Interviewing OIP director Pustay vie email, McIntosh reports that OIP has no position on whether or not to provide first-requesters with a lead time on FOIA releases, noting it is something OIP will be examining throughout the six-month pilot program. McIntosh notes that although sub-components of seven agencies are participating in the program, “Those in the pilot differ in what they post and how they do it,” begging broader questions about not only first-requester priority, but also how results of the study will be extrapolated government-wide.

“Long time since (Hurricane) Katrina. LOL.”

Anticipating protests in response to the announcement of whether or not Ferguson, MO police officer Darren Wilson would be indicted in the shooting death of African American teenager Michael Brown last year, the Department of Homeland Security (DHS) worked on a surveillance plan to conduct of the protests. Vice’s Jason Leopold reports – thanks to over 700 heavily redacted pages he obtained in response to a FOIA request – that DHS attempted to preemptively stymie any protest surveillance documents’ release because of concerns they would be requested under the FOIA. Specifically, “an employee with DHS’s National Protection and Programs Directorate distributed an email on November 11, 2014 reminding personnel to mark all electronic communications ‘for official use only’ because of ‘recent events and FOIA requests.’” FOIA’d documents also show that the agency investigated claims that Muslims had “co-opted” the protests based on “intelligence” from Fox News reporting “on how the Council of American and Islamic Relations (CAIR) was trying to raise awareness about the 2009 shooting death of Luqman Ameen Abdullah, an imam at a Detroit mosque.” One document also shows that DHS officers were looking forward to reuniting with old colleagues in Ferguson and St. Louis, with one writing, “Looks like we are working together again,” and another, “Long time since [Hurricane] Katrina. LOL.”

President Obama’s national security adviser, Susan Rice, allegedly presented Secretary of Defense Ashton Carter with a “memo stating that he would have 30 days to make decisions on newly proposed transfers” of Guantanamo detainees at a cabinet-level “principals committee” meeting last week. Carter’s delay in transferring the detainees since taking office is prompting anxiety among the Obama administration, which wants to close the facility before the president leaves office in 18 months. Mr. Carter did not commit himself to the administration’s 30-day timeline.

US District Court Judge Richard Leon berated the State Department and its Justice Department lawyers over DOS’ handling of a 4-year-old Associated Press FOIA request last week. AP received no response from the State Department on its request, which sought records about former Secretary of State Hillary Clinton’s schedules and staffers, including Clinton Deputy Chief of Staff Huma Abedin, now vice chairman of Clinton’s presidential campaign, until filing suit. Judge Leon harangued the government’s representatives, saying “The State Department, for reasons known only to itself … has been, to say the least, recalcitrant in responding.” Leon also told DOJ lawyers that they were responding to questions about why AP’s request was being delayed because of State’s handling of Jason Leopold’s much more recent request for Clinton’s emails with “convoluted gobbledygook.”

Wired reported recently that a staggering 89% of all wiretaps are fueled by drug cases, an increase of 27% in the last 25 years, and a strong indicator of how the War on Drugs shapes government surveillance. Reporter Andy Greenberg notes “that constant swell in drug-focused wiretaps may help to explain the general increase in all American wiretaps. In total, the count of US state and federal wiretaps has jumped from 768 in 1989 to more than four times that number today. But take out those drug cases, and the collection of wiretaps of all other kinds increased only 29 percent in those 25 years, from 297 in the year 1989 to just 384 last year.” Greenberg reports that one of the reasons drug-related wiretaps far outpace others is the money they can generate: “a wiretap costs an average of $39,485 in 2014 according to the latest report—and unlike other types of crimes, those seizures mean that drug cases can pay for themselves.”

Police photos of Julius and Ethel Rosenberg (Source: Exhibits from the Julius and Ethel Rosenberg Case File, 03/13/1951 – 03/27/1951)

The biggest revelations from the newly-released Rosenberg grand jury testimony shows that Ethel’s brother, David Greenglass, lied about his sister’s involvement to conceal the minor role played by his wife, Ruth. The testimony was obtained thanks to a court order in case brought by the National Security Archive and a coalition of Historical and Archival Associations. The most important passages from Greenglass’ testimony are on page 12, in which he says, “My sister has never spoken to me about this subject,” and on page 30, where he states, “I never spoke to my sister about this at all.” Ruth Greenglass’ testimony, released in 2008, undermined the core charge against Ethel, “struck the keys, blow by blow, against her own country in the interest of the Soviets.” Of the Rosenberg case Brad Snyder says, “This historical import of the David Greenglass’s grand jury testimony is bigger than the guilt or innocence of Julius and Ethel Rosenberg. It is about how the American criminal justice system treats even the most despised and politically unpopular defendants. It is about the role of the Supreme Court in policing the behavior of government prosecutors.”

Cover page of US appeals court ruling in Chiquita reverse FOIA case,
July 17, 2015.

In a huge win for transparency and corporate accountability, Chiquita Brands International lost its bid to hide Colombia terror documents from the public (again) in a suit brought by the National Security Archive. Last week a federal appeals court in Washington, D.C., ruled that the US Securities and Exchange Commission (SEC) should release to the Archive 9,257 pages of records produced by Chiquita to the SEC as part of an investigation of the company’s illegal payments to a Colombian terrorist organization, the United Self-Defense Forces of Colombia (AUC), a group responsible for egregious acts of violence during Colombia’s civil war. In April 2011, the Archive published some 5,500 pages of Chiquita’s records released by the Department of Justice in response to similar FOIA requests. Those records revealed that Chiquita benefitted from its transactions with both AUC “paramilitary” groups and insurgents from the FARC and ELN guerrilla groups. The records call into question the Justice Department’s determination, spelled out in the 2007 plea deal, that there was no evidence of a quid pro quo with the illegal groups.

The Archive’s latest posting commemorates the 40th anniversary of the Church Committee investigation of CIA abuses, and details how that probe foreshadowed post-9/11 executive/congressional battles. Documents posted this week show, among other things, that: the White House of President Gerald R. Ford, spearheaded by deputy assistant to the president Richard Cheney, quickly seized control of the administration’s response to the congressional investigations; lists of records to which the Church Committee requested access for its investigation were reviewed in detail and Mr. Cheney ultimately decided whether to provide them in each case; and CIA accommodation measures were explicitly designed to keep Church committee investigators away from its most important records.

This week’s #tbt document pick is chosen with the recent Chiquita ruling in mind, and is one of the most startling documents released to the Archive in April 2011. This week’s #tbt pick is a January 4, 1994, Chiquita memo indicating that leftist guerrillas provided security at some of Chiquita’s plantations. The general manager of Chiquita operations in Turbó told company attorneys that guerrillas were “used to supply security personnel at the various farms.”

GM says Guerilla Groups used for security.

Happy FOIA-ing!