Effectively Utilizing Available Tech Would Go a Long Way Preventing “Aneurysm-Inducing” FOIA Frustrations: FRINFORMSUM 7/28/16

A June 2012 note from the governor to state Sen. John Patrick, D-Oxford. The note begins, “John, You are a bold face liar and cheat! Character eludes you.” 

Maine Gov. Paul LePage, who vowed in 2010 that his administration would be the “most transparent” in the state’s history, is fighting to keep his work-related, handwritten notes beyond the reach of Maine’s public records law. The governor’s use of handwritten notes is well-known, and last year the Portland Press Herald/Maine Sunday Telegram requested copies of all of them under Maine’s Freedom of Access Act (FOAA) – and only received three. Defending the paltry disclosure, LePage’s staff argues that – in direct opposition to what Maine’s FOAA actually says – “the notes are personal and not public documents that must be saved and accessible to the public.” Maine’s FOAA, however, defines a public record as “any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be obtained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or custody of an agency or public official of this State . . .” LePage also recently issued an anti-texting policy “after it was made public that an employee at the Maine Center for Disease Control and Prevention said she had been ordered by her superiors and LePage appointees to use text messaging as a way to circumvent FOAA requests.”

Ryan Shapiro is suing the Justice Department over the FBI’s intentionally cumbersome FOIA search software, which is designed to fail to find responsive documents. Wired’s Davey Alba has a good summary of how the FBI’s system does this, explaining how Shapiro – by piecing together testimony from federal agents – found that the “FBI’s main records database, the Central Records System, isn’t itself searchable. Agents have to conduct the search on a mirror called the Automated Case Support system via an application called Universal Index to search a card catalog-like database. But this amounts to hunting for relevant documents by relying on the topic of a book alone when the person making the FOIA request is, to extend the library metaphor, looking for a specific title or information contained on a specific page.” The Bureau utilizes the outdated software, which is so old “that it doesn’t even have a graphical user interface,” even though it has another $425 million system, Sentinel, that would allow full-text search.

FOIA shops – and government websites more broadly – are often criticized for employing outdated software – at the taxpayer’s expense –  that is behind software routinely used by private sector websites. To help bring the government into the 21^st century, the Obama administration launched the Digital Service team – an initiative “that pairs the country’s top technology talent with the best public servants, to improve the usefulness and reliability of the country’s most important digital services.” The service currently has charters with seven different agencies and overwhelmingly positive agency approval ratings.

This begs the question of why the same cannot be done with FOIA. Hopes were high in 2014 when 18f, a highly regarded group of technology innovators at the General Services Administration, hinted that it was being tasked to help build a government-wide FOIA portal. The project, however, did not pan out. It’s unclear (or at least unconfirmed) why, but as 18f notes, a FOIA Task Force comprised of representatives from, among other places, the Department of Justice, oversaw the project. It does not inspire confidence that the DOJ – which a FOIA request proved had lobbied to kill unanimously supported FOIA legislation and ritually defends bad agency FOIA actions in court – was in a position to influence the direction of such an important project.

ProPublica recently published an “aneurysm-inducing” collection of FOIA frustrations to highlight the ways FOIA still needs to improve as the recently-upgraded law turns 50. One ProPublica reporter – Justin Elliott – recounted his frustration upon learning that any request submitted to the Justice Department that is not actually seeking documents from its FOIA office (the Office of Information Policy) is placed in the “complex” track, requiring additional processing time. Jesse Eisinger, for his part, shared a story about a FOIA request he filed with the Securities and Exchange Commission “for all the investigative files from its closed probe of a certain bank.” While Eisinger tried narrowing his request to reduce processing time, his attempts were unsuccessful because the boxes he wanted –which were “stored in a warehouse and all pertained to the investigation into the bank” – weren’t labeled.

The 103-member Chief FOIA Officers Council, co-chaired by DOJ OIP head Melanie Pustay and acting head of the FOIA Ombuds office Nikki Gramian, met for the first time last Friday to discuss implementing a “release to one is a release to all” standard for FOIA disclosures. Journalists have expressed concerns that such a policy – while fulfilling the spirit of the FOIA – would be a disincentive from using the FOIA and ruin the possibility of scoops (although agencies regularly post FOIA logs that could conceivably do the same thing, and a natural follow-through to posting logs would be to post the actual documents).

As the National Security Archive argued in our 2015 audit, “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole… Perhaps the best method that addresses both journalistic and FOIA advocates concerns’ is to require the documents be posted online, but not immediately. Currently, the Department of State posts FOIA’d documents quarterly.”

The Chief FOIA Officers Council, along with the Office of Management and Budget, is charged with “implementing the [release to one, release to all] policy and addressing journalists’ and agencies’ concerns by Jan. 1, 2017.” Journalists will be invited to the next meeting and given the opportunity to voice their opinions in person.

Judge James Pohl – an Army colonel presiding over the Guantanamo military commission of five of the alleged 9/11 planners – has returned “virtually all” of the prosecution’s evidence as inadequate and requiring review. Pohl noted that the prosecution has presented him with approximately 50 percent of the evidence they believe the defense is entitled to. Defense attorney Jay Connell said Pohl’s actions likely indicate the evidence was either over-redacted or “too skimpy.”

State Department graph of resources provided to FOIA processing.

U.S. District Court Judge Rudolph Contreras recently denied the State Department’s request for a 27-month extension processing Citizen United’s FOIA request “for emails among four former State officials and individuals at the Clinton Foundation and a consulting firm close to the Clintons, Teneo.” Citing the State Department’s “drop” in resources devoted to FOIA processing since last February, Judge Contreras said “Because these facts imply that Defendant has been ‘lax … in meeting its [FOIA] obligations…with all available resources. …,’ the Court does not find a twenty-seven month extension of time appropriate.” State has maintained in other FOIA cases that because most of its FOIA processing is done by retired foreign service officers, who “are limited by law to working no more than about 1,000 hours per year,” many FOIA processors were forced to take time off.

The Pentagon has removed a clause in its Law of War Manual “suggesting that journalists could be seen as combatants.” In August 2015 The New York Times Editorial Board published a damning rebuke of the 1,176-page Law of War Manual, particularly the manual’s instructions that members of the press may in some cases be categorized as “unprivileged belligerents.” The Board called on the secretary of defense to revise its guidance on journalists; the revision now reads “in general, journalists are civilians and are protected as such under the law of war.”

Daniel Meyer, recently the “Obama administration’s top official overseeing how intelligence agencies handle whistleblower retaliation claims,” has filed his own retaliation complaint with the Merit Systems Protection Board (after the Office of Special Counsel rejected his claims in April). Meyer accuses his DOD bosses of removing damning conclusions from a DOD inspector general report on the making of “Zero Dark Thirty” – namely that Leon Panetta leaked classified information to the makers of the film. Meyer says that the “conclusion was later removed after then-acting Inspector General Lynne Halbrooks met privately with Panetta.” The National Security Archive posted the “Zero Dark Thirty” file, a collection of all the available official documents on the mission to kill Osama bin Laden, in an effort to balance the Obama administration’s decision to grant the film’s producers exclusive and unprecedented access to classified information about the operation.

Seen from Bikini Island, the Baker explosion as the water begins to shower down. (NARA, Still Pictures Unit, Record Group 372-G, box 5, folder 18 “Detonation”)

US atomic tests in Bikini Atoll in July 1946 staged by a joint Army-Navy task force were the first atomic explosions since the bombings of Japan a year earlier. Documents posted by the National Security Archive about “Operation Crossroads” shed light on these events as do galleries of declassified videos and photographs. Of the more eyebrow-raising revelations is that the second test – Baker – contaminated nearby test ships with radioactive mist, making them “radioactive stoves, and would have burned all living things aboard with invisible and painless but deadly radiation.” (Footage of the Baker test was also used by Stanley Kubrick in the closing scenes of Dr. Strangelove.) International observers were invited to watch the tests; Soviets interpreted the display as a threat, responding that they were “not afraid” and that they had “wonderful planes” that could easily bomb US cities.

Jonathan Pollard: On the left is Pollards U.S. Naval intelligence I.D. photo, and on the right a 2012 photo of Pollard in prison.

This week’s #tbt pick is chosen with U.S. District Judge Katherine Forrest’s recent signaling that she would not ease convicted spy Jonathan Pollard’s parole requirements, which are “preventing him from taking a financial industry job,” in mind. This week’s #tbt pick is a 2012 National Security Archive posting on Pollard’s case, including the 1987 CIA damage assessment, which was released through the Mandatory Declassification Review process by the Interagency Security Classification Appeals Panel. The assessment included new details on the specific subjects and documents sought by Pollard’s Israeli handlers, such as Syrian drones and central communications, Egyptian missile programs, and Soviet air defenses.

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Happy FOIA-ing!