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Overall Good FOIA Reform Bill Passes House With Troubling IC Carve-Outs: FRINFORMSUM 1/14/2016

January 14, 2016
House Oversight Report on the broken FOIA process.

House Oversight Report on the broken FOIA process.

On Monday the House of Representatives passed the FOIA Oversight and Implementation Act (H.R. 653) under suspension of the House rules. The bill, introduced by Representative Darrell Issa (R-Calif.) and cosponsored by Elijah Cummings (D-Md.) and Mike Quigley (D-Ill.), is “one of the few pieces of truly bipartisan legislation expected to pass this Congress,” according to The New York Times. House Oversight Committee Chairman Jason Chaffetz (R- Utah) noted that “In large part, the FOIA, the way it operates now, is broken,” (a finding emphasized in a recent House Oversight and Government Reform Committee report), and that “This piece of legislation will make that FOIA process smoother. It’ll make it more effective, more efficient.”

The reform bill, among other things, codifies the presumption of openness mandated in Obama’s Day One FOIA Memo, “directs agencies to withhold information requested under FOIA only when there is ‘foreseeable harm’ to one of the interests protected by a FOIA exemption,” strengthens the FOIA ombuds OGIS by granting it the “ability to communicate directly with Congress and issue advisory opinions in mediation,” and ensures that agencies cannot invoke FOIA’s “withhold it because you want to” Exemption 5 for information that is older than 25 years. The bill also requires annual compliance reviews, makes it easier to be awarded attorney fees, requires agencies to accept FOIA requests by email, instructs that those responsible for withholding information be identified in the denial, and mandates the creation of “a central portal to distribute FOIA requests government-wide and online disclosure of all records that are the subject of three or more requests.”

The Archives 2015 Audit shows most agencies falling short on mandate for online records.

The Archive’s 2015 Audit shows most agencies falling short on mandate for online records.

It’s worth noting that the Department of Justice’s Office of Information Policy (OIP), which oversees government-wide FOIA compliance, issued guidance in March 2015 on proactive posting of frequently requested records – defined as those which have been released three or more times. The guidance says, “even in the absence of multiple requests for the same or similar records, agencies should use their best judgment at the time each request is received to determine whether they believe the responsive records concern a popular topic that is likely to become the subject of subsequent requests in the future.” This guidance has been on the books for the better part of a year, so while legislation codifying it is undoubtedly good, agencies proactively post records infrequently and an oversight mechanism to enforce compliance remains necessary.

While the House bill is a good step in the right direction, last-minute carve-outs for the frequently FOIA-ed 17 agencies that make up the Intelligence Community from the bill’s improvements are troubling.1 Added at the insistence of the House Permanent Select Committee on Intelligence (HSPCI), the carve-outs exempt the Intelligence Community (IC) from certain provisions, including “language that states that currently-protected information relating to ‘sources and methods’ would not be subject to disclosure under any of the amendments in the bill”. The bill exempts the IC from necessary reforms to the consultation process; a big mistake as intelligence agencies are the biggest consultation abusers. The bill also contains a provision requiring agencies to publish “a list” of of all denied material unless the disclosure is prohibited by law. This is another tremendously beneficial provision of the bill, but it will be watered-down if the IC is exempted.

Openthegovernment.org’s Executive Director Patrice McDermott notes, “The efforts to exempt the Intelligence Community are not acceptable. They are particularly offensive in this bill intended to promote openness across the federal government.” The Project on Government Oversight’s Liz Hempowicz also says, “This situation is also alarming because it closely tracks the absurd objections from the banking interests that derailed this reform in 2014.”

FOIA reform now moves to the Senate, where passage of similar FOIA reform (S 337) seems likely. Majority Whip John Cornyn (R – Texas) urged his chamber to take up the legislation, noting “this presumptive notion of openness is important to the functioning of our democratic form of government.” If a FOIA bill passes the Senate, the difference between the bills will need to be reconciled. This reconciliation is how the two unanimously supported FOIA bills died in late 2014.

FOIA was most recently amended by the 2007 Open Government Act, which broadened the definition of “a representative of the news media” to include electronic-only media and freelancers, established the FOIA ombuds OGIS, and prevents agencies from charging certain fees if they miss their response deadlines. Since then, FOIA reform has been introduced six times without becoming law.

The House also passed a bill this week to improve disclosure of donations over $200 to presidential library foundations.

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

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

DOJ OIP director Melanie Pustay – who Rep. Chaffetz told in June must be living in “la-la-land” if she thought FOIA was being properly implemented – recently gave another head-scratching quote. In a truly excellent Nieman Report on “Fifty Years of 50,” Pustay professed ignorance of why FOIA requesters are increasingly frustrated with growing backlogs and bogus use of exemptions. Pustay says, “I’m always perplexed by those sorts of criticisms.”Pustay claims that since her tenure began in 2007, “agencies have outright rejected only 9 percent of FOIA requests”. This figure is highly misleading, and does not include the FOIA requests that it denies based on reasons including: fees (pricing requesters out); referrals (passing the request off to another agency while the requester still waits); “no records” (very frequently the result of inadequate searchers by DOJ employees); and requests “improper for other reasons” (which ostensibly includes the “can neither confirm nor deny” glomar exemption). The figure cited by Pustay also includes records that have been released in part – a misleading categorization when “in part” can mean 99 percent of a document is withheld. Pustay’s off-base comments are further proof that better FOIA oversight mechanisms are needed.

The NSA outdated CryptoKids site.

The NSA outdated CryptoKids site.

The National Security Agency (NSA) recently told a FOIA requester seeking budget and graphic design information for a coloring book peddling the agency’s CryptoKids to “hope that your case may be assigned to a Case Officer within the next 12-18 months. Estimating an actual completion date for your case is also difficult, as it is entirely dependent on whether or not document [sic] are located, how many documents are found, and the complexity of any document located. The estimated completion date for those cases in the median range is 3-4 years.”

Information Security Oversight Office (ISOO) director John Fitzpatrick left his position to join the National Security Council, where he will serve as Senior Director for Records Access and Information Security Management. Steve Aftergood notes that, “While there remains much to criticize in classification and declassification policy, Mr. Fitzpatrick presided over a four-year decline in original classification activity, such that by 2014 the number of new national security secrets created annually had dropped to the lowest ever reported by ISOO in its 35 year history.”

The Supreme Court declined hearing a petition for certiorari in EPIC’s FOIA lawsuit against the Department of Homeland Security for information on its “wireless kill-switch”. This means the U.S. Court of Appeals for the D.C. Circuit’s August 2015 ruling that DHS can “withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies” stands.

Today is the last day to fill out the National Security Archive and the Project on Government Oversight’s FOIA fees survey. Please make sure to fill it out and help us provide a more representative view of FOIA fees for the government’s FOIA Advisory Committee, which recently distributed a similar survey – but only to federal FOIA processors. The results will be analyzed before the Committee’s next meeting, to be held on January 19.

The bin Laden doll after the top layer of paint faded away. Photo by Adam Goldman/The Washington Post

The bin Laden doll after the top layer of paint faded away. Photo by Adam Goldman/The Washington Post

This week’s #tbt pick is inspired with the NSA’s CryptoKids in mind, and is the CIA’s Osama bin Laden doll, codenamed “Devil Eyes”. The CIA has not yet responded to the Archive’s 2014 FOIA request for information on the doll – intended for distribution in Afghanistan or Pakistan and whose face was designed to frighten children and painted with “a heat-dissolving material, designed to peel off and reveal a red-faced bin Laden who looked like a demon, with piercing green eyes and black facial markings” – but a copy was was auctioned off by the Nate D. Sanders auction house in June.

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Happy FOIA-ing!

 


1. The agencies that make up the IC are: The Department of Homeland Security; the Department of State; Air Force Intelligence; Army Intelligence; the Central Intelligence Agency; Coast Guard Intelligence; the Defense Intelligence Agency; the Department of Energy; the Department of the Treasury; the Drug Enforcement Administration; the Federal Bureau of Investigation; Marine Corps Intelligence; the National Geospatial-Intelligence Agency; the National Reconnaissance Office; the National Security Agency; Navy Intelligence; and the Office of the Director of National Intelligence.

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