Time is Now to Submit Comments Protesting ODNI’s Astronomic MDR Fees, How Obama Can Improve Openness Legacy, and More: FRINFORMSUM 3/24/16

The proposed regs go against the President’s commitments and the ODNI’s own General Counsel, Robert S. Litt, pictured here.

The National Security Archive recently submitted comments to the Office of the Director of National Intelligence stating our concern over its proposed regulation change that would charge requesters as high as $72 per hour for Mandatory Declassification Review requests and 50 cents per page for photocopying. The rule goes against ODNI’s Transparency Implementation Plan, previous transparency initiatives, instructions from ODNI’s General Counsel Bob Litt, and the President’s January 21, 2009, transparency memorandum.

The ODNI’s MDR fee structure should remain consistent with FOIA’s fee structure. The FOIA statute mandates that no fees may be charged for the “first two hours of search time or for the first one hundred pages of duplication.” The FOIA further instructs that fees surpassing the first two search hours and 100 pages of duplication be reasonable, and as such, the ODNI’s FOIA fee policy only charges 10 cents per page for photocopying and provides an automatic waiver for fees that are less than $10.

ODNI has indicated in response to public comments that it plans to modify the proposed rule.  No official notification has been given, however, and the public comment period remains open – until March 28.

OpenTheGovernment.org (OTG) will also be submitting comments.

The CIA tried — and failed — to enact the same bad, astronomically high MDR fees in 2011. After public backlash against the CIA’s proposed regulations, the agency, “as a courtesy to requesters,” withdrew the rule in 2012. Why the ODNI copied the CIA’s failed and misguided fee change –and who is behind the proposals– is a mystery; but it shows that transparency advocates need to keep an eye on other agencies trying to sneak through the same barriers to access.

President Obama signs his Freedom of Information Act Memo on January 21, 2009.

The Archive also recently joined OTG and a dozen other groups in encouraging President Obama to take concrete and feasible steps to improve his open government legacy – ones that lives up to his Day One promise of being the most transparent administration in history – during his last year in office. These steps include advocating the presumption of openness in the FOIA that is present in both the House and Senate’s FOIA reform bills and releasing the Senate report on the CIA’s torture program.

Reinforcing the Obama administration’s “declassified diplomacy” and efforts to declassify historical records on Argentina’s dirty war during Obama’s visit to that country, the National Security Archive this week posted examples of the kinds of materials in US government files that would most likely enhance public understanding of that troubled period in Latin American history. In the case of other countries like Chile, Guatemala and El Salvador, declassified US intelligence, defense and FBI records have been key to supplying critical information about local command structures, clandestine operations, and human rights violations. Still-classified documents in US files undoubtedly describe similar operations against Argentine insurgents, dissidents and opposition, and their release would advance public comprehension of another historically significant episode of military repression in the region.

This isn’t the first time that the Obama administration has practiced “declassified diplomacy.” In 2014 Vice President Joe Biden announced during a meeting with Brazilian president Dilma Rousseff that the administration would “would undertake a broader review of still highly classified U.S. records on Brazil, among them CIA and Defense Department documents” to assist in finalizing the Brazilian Truth Commission Report. In October 2015 Secretary Kerry personally provided Chilean president Michelle Bachelet with several hundred documents on the Letelier-Moffitt assassinations in Washington, D.C. on September 21, 1976.

Planning on filing a FOIA request with the CIA? A recent court ruling spells out what “magic words” requesters need to use for the CIA to search for records. Requesters must ask for documents that “mention” or “reference” what you’re looking for, not documents that “pertain to”, “relate to”, or “concern” the subject of your request. This very useful information is thanks to a FOIA lawsuit for Nelson Mandela records filed by MIT PhD candidate Ryan Shapiro after the CIA argued unsuccessfully that his request was too burdensome. The judge in the case, U.S. District Judge Christopher R. Cooper, ruled against the CIA, finding that, “Regardless of how onerous it might be to locate them, there can be no dispute about which items are being requested – records in the CIA’s possession that ‘mention’ Nelson Mandela or his three listed aliases,” going on to note that “FOIA’s reasonable-description requirement does not doom requests that precisely describe the records sought, even if compliance might overwhelm an agency’s response team.” See page 7 of the recent ruling in Shapiro’s case for more information on wording a FOIA request to the CIA.

There is a “substantial likelihood” that the Pentagon inspector general’s office destroyed evidence in the prosecution of whistleblower and former National Security Agency official Thomas Drake, according to a new Office of Special Counsel (OSC) report. OSC, the office charged with protecting whistleblowers, sent its conclusions to the Justice Department, which in turn promised to open an investigation no later than June 1. OSC’s findings support Drake’s long-standing claims that the Pentagon IG – which has jurisdiction over the NSA IG – did not “did not properly maintain his confidentiality after he cooperated in 2002 and 2003 with congressional inquiries and a Pentagon inspector general audit of the National Security Agency’s controversial surveillance programs.” Drake was charged by the government in 2010 under the Espionage Act. The charge was dropped in 2011 in a case that US District Court Judge Richard Bennett  called “unconscionable,” adding that it didn’t “pass the smell test.”

The Justice Department is declining to prosecute Robin Raphel, a career diplomat that was investigated by the FBI for allegedly providing US secrets to Pakistan. The investigation into Raphel began in 2014 after officials eavesdropped on a call between Raphel – who has been integral to shaping foreign policy towards Pakistan for decades – and a Pakistani official, which seemed to indicate that she “was passing American secrets to Pakistan.” The FBI found classified information when it raided Raphel’s home in 2014 – but the information wad decades-old.

The Navy –under Congressional pressure—is denying Rear Adm. Brian L. Losey’s promotion for retaliating against suspected whistleblowers. Losey was investigated five times “after subordinates complained that he had wrongly fired, demoted or punished them during a vengeful but fruitless hunt for the person who had anonymously reported him for a minor travel-policy infraction.” Senator Ron Wyden (D-Ore.) forced the Navy to reconsider Losey’s promotion by blocking Janine Davidson’s nomination to become the Navy’s second-ranking civilian leader and Sens. John McCain (R-Ariz.) and Jack Reed (D-R.I.), the chairman and ranking Democrat on the Senate Armed Services Committee, sent a joint letter over concerns with the promotion. Rejecting the promotion was a tough sell even with Congressional attention;  “a promotion board consisting of Navy admirals recently recommended in a majority vote that Losey be promoted anyway”, a recommendation that was only overruled by Navy Secretary Ray Mabus.

Are your loyalties divided?

Chelsea Manning recently obtained a 31-page document on the government’s Insider Threat program. The document reveals that “Thousands of US government employees under permanent surveillance are being investigated” to prevent unauthorized leaks. The beginning of the document outlines the eight characteristics that are “telltale signs” of employees likely to leak secrets. These characteristics include “ideology”, “divided loyalties”, and “disgruntled or wants revenge.” Steve Aftergood notes that focusing on these kinds of characteristics harken to an ineffective Cold War strategy. Aftergood also points out that, “The government has already put about 100,000 military and civilian employees and contractors under what it calls ‘continuous evaluation.’”

Officials speaking on the condition of anonymity have indicated that the Defense Department sought administrative and non-judicial actions rather than criminal charges against more than a dozen military personnel involved in an October 2015 airstrike that destroyed a hospital in Afghanistan, killing at least 42. The full results of the investigation are expected to be released shortly.

An ACLU FOIA request to the US Marshals has won the release of documents showing that agents hid their work using controversial cellphone surveillance technology with classification labels, “even though Justice Department officials have said that such methods are normal court-approved law enforcement, not spying or intelligence tactics.” The documents show that the Marshals paid more than $10 million over a five-year period for the surveillance technology, and suggest “a mingling of law enforcement with national-security and espionage work—two areas usually kept distinct in order to protect Americans’ privacy.”

The National Security Archive’s Peter Kornbluh — recently in ‪Cuba as part of President Obama’s press group — told Voice of America this week that, “I think in just five or six years, you’re going to see full access to the Internet in Cuba, you’re going to see a really, a fully mixed economy in Cuba, and we’ll be in the post-Castro era where frankly, political evolution is not only likely, but inevitable.”

June 15, 1995, letter protesting deteriorating conditions in the former Yugoslavia.

Today’s #tbt pick is chosen with today’s conviction of Bosnian Serb leader Radovan Karadzic of genocide, war crimes, and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia, in mind. Today’s pick is a June 15, 1995, letter from the United Nations to Karadzic saying, “We expect you to take responsibility for ensuring that those under your authority comply with all existing agreements and obligations…”  Keep an eye out for an upcoming blog on the incriminating documentation regarding Karadzic gathered by the National Security Archive’s Genocide Documentation Project.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!