DOJ Still Hawks Misleading FOIA Stats, FOIA Shows DOJ Lied to SCOTUS on Immigration – Again, and More: FRINFORMSUM 9/1/2016
Tom Susman, a member of the FOIA Advisory Committee, emailed the heads of the Justice Department’s Office of Information Policy (OIP) and Office of Government Information Services (OGIS) on the discrepancy between the misleading 91 percent FOIA release rate commonly cited by OIP – and repeated by the rest of the government – and the more accurate release rate calculated by the Archive and others of between 50 and 60 percent. The National Security Archive has long drawn attention to OIP’s misleading stats, which it calculates by counting nearly entirely redacted documents as successful partial releases (see above for an example), excluding requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons.” Neither OGIS nor OIP have publicly responded to Susman’s email. When the White House, DOJ, or others cite a 91 percent “success statistic” their aim is to present a view to the public that FOIA is working 91 percent of the time. Anyone that has looked at the stats – including the blanket denials, redactions, decades long waits – or has filed a FOIA request, knows that this “statistic” is far from the truth. A better track for the administration would be to candidly acknowledge the problems facing FOIA and work openly to fix them.
The Freedom of Information Act has won the release of information showing that the Justice Department provided the Supreme Court inaccurate information in a 2003 immigration case – Demore v. Kim – concerning the government’s policy of denying bail to immigrants imprisoned and awaiting deportation after being convicted of a crime. In a 5-4 vote the Court ruled in favor of the government, upholding a “blanket policy of denying bail” in such cases. The 2003 court ruling, citing government data, said that the average detention time of four months “is too short to trigger a constitutional right to a hearing to argue for bail.” After the ACLU filed a FOIA request for information on how the government reached the four-month figure, however, the Justice Department’s Executive Office for Immigration Review found the average detention time was over a year. Acting Solicitor General Ian Gershengorn sent a letter to the Court on Friday alerting it to the “significant errors,” and that the Court may wish to amend its opinion.
This is the second time the Justice Department has presented the Court inaccurate information in an immigration case. In 2012 Elena Kagan’s Office of the Solicitor General admitted “it had inaccurately asserted in a 2009 case, Nken v. Holder, that officials routinely ‘facilitate’ the return to the U.S. of deported aliens who later win their immigration appeals.”
Nancy Morawetz of NYU’s Immigrant Rights Clinic says part of the problem in both cases is that the Solicitor General can submit information directly to the Supreme Court, and this information “isn’t tested through the adversary process of discovery and cross-examination that occurs in the lower courts” – an issue that goes beyond immigration cases.
In 2013 Solicitor General Donald Verrilli made misleading statements before the Supreme Court in Clapper v. Amnesty International about the National Security Agency’s (NSA) warrantless surveillance practices. Verrilli erroneously argued that defendants were notified whenever information used against them was obtained pursuant to Section 702 of the FISA Amendments Act of 2008. While the DOJ is now –belatedly– informing defendants when evidence used against them was obtained by warrantless surveillance, it wasn’t doing so at the time of the Clapper case. Verrilli also argued that Section 702 surveillance was done directly on foreign suspects, whereas it was actually interpreted by the NSA to allow the inclusion of wholly-domestic communications when a foreign suspect’s identifier, such as an email address, was mentioned in a communication.
Daniel Schuman recently published a blog on an important question – what happens to Vice President Joe Biden’s Senate office documents after he leaves office? Are they subject to FOIA or the Presidential Records Act? The Congressional Research Service notes that “[T]he Vice President has discretion to determine which of his records qualify as presidential records under the PRA…The PRA does not explicitly define vice presidential records, but the record-preservation policies governing the Vice President’s records have prompted controversy.” Dick Cheney is alleged to have wiped his Senate office computers clean before he left office, arguing that the Vice President is alone responsible for determining what is considered a vice presidential record – an argument the court agreed with.
Reporters Committee for Freedom of the Press has released the results of its 11-question survey on journalists’ opinions about a “Release to One, Release to All” FOIA policy. Adam Marshall summarizes that, “While a quarter of respondents supported the policy unconditionally, almost 60% support it only with conditions, such as a delay period. Only 13 out of more than 100 respondents who self-identified as journalists do not support the policy at all.” Fear of being “scooped” has long been cited as one of the leading reasons journalists might oppose such a policy, but the study revealed that many doubted “access to records requested under FOIA alone would enable other reporters to scoop a story.”
The National Security Archive’s position is that “the fundamental principle guiding open government is that a document release to one requester constitutes a release to the public as a whole.” The Archive has long been open to compromise, however, allowing for the possibility of a “release to one, release to all” method which provides for the online posting of FOIA-processed records with a short, built-in delay. The Department of State, probably the government’s best online reading room, posts its FOIA releases quarterly.
The Nation Magazine, providing some historical context to Hillary Clinton’s email fiasco, recently highlighted the National Security Archive’s battle to save millions of White House emails, starting with the Reagan Administration. Greg Grandin notes that, “Just as the Reagan presidency was about to come to an end, the National Security Archive… sued to prevent the administration from deleting roughly 7 million e-mails. This was the beginning of bringing the digital dominion under the sovereignty of the Freedom of Information Act and the National Archive and Records Administration, creating the public oversight that Hillary Clinton, in setting up her private server, apparently tried to bypass.” Read more about our efforts to save White House emails here, here, and here.
The State Department has declassified documents on the “legendary Tony Poe” – the CIA officer who conducted field operations in Thailand, Cambodia, and Laos and is widely (and controversially) cited as the basis for Marlon Brando’s Colonel Kurtz in Francis Ford Coppola’s Apocalypse Now. According to John Prados’s must-read biography of Poe for Unredacted, Poe would “cut off the ears of dead enemies, which he kept in a plastic bag.” When Poe thought he had enough, he would send reports – with ears stapled to them – to the Vientiane Embassy, resulting in “bushels of ears at headquarters.” The declassified record on Poe remains anemic, but State’s release should make it harder for the CIA to hide documents on Poe going forward.
The Berlin Center for Cold War Studies published a terrific article analyzing some of the documents available in the Archive’s Cyber Vault (updated every Wednesday). One of the documents highlighted is “President Ronald Reagan’s National Security Decision Directive #145 of 17 December 1984. Here, Reagan explicitly declared the protection of ‘automated information systems’ to be an executive matter. This has since become a ‘vital element of the operational effectiveness of the national security activities of the government and of military combat readiness.’” The article also opines that for many Cold War historians, working with the Archive’s documents is “a rite of passage.”
As the National Park Service celebrates its centennial, FOIA requests show that problems with visitors violating park rules are on the rise – “In July alone, law enforcement rangers handled more than 11,000 incidents at the 10 most visited national parks.” Most cited problems include “illegal camping, vandalism, theft of resources, wildlife harassment.” This behavior, and the resources needed to address it, comes as the service faces a $12 billion budget cut.
This week’s #tbt pick is chosen with the recent release of the CIA’s 19 October 1973 biographical sketch of Australian Prime Minister Gough Whitlam in mind. This week’s tbt pick is a 2014 blog post highlighting declassified Henry Kissinger telephone conversations that depict a more complicated relationship with the man Kissinger once called a “bastard.” Whitlam was dismissed by the Queen’s Governor in 1975 – a move Whitlam later inferred was supported by the CIA. Several years after Whitlam’s dismissal, Christopher Boyce, an American contractor affiliated with the CIA who spent a quarter-century in prison for selling secrets to the Soviets, claimed the agency played a central role in what was effectively a coup to remove Whitlam from power. Boyce, echoed by investigative journalist John Pilger and Pulitzer Prize-nominated journalist Jonathan Kwitny, argued Whitlam’s removal was primarily over US concerns Whitlam would withdraw Australia from the Pine Gap Agreement – a pact that allowed the US to maintain a military base in central Australia.
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