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Why does it take the USG Nearly Three Years to Review A Map? The FBI and Clinton; and Journalists “Against Transparency” FRINFORMSUM 9/9/2016

September 8, 2016
Yes, you read the author correctly.

Yes, you read the author’s name correctly.

[Ed. Note: I’m pinch hitting for Lauren this week while she is on vacation.  I’ll do my best!]

This week Matthew Yglesias of Vox.com wrote an eyebrow raising, if ill conceived piece, entitled “Against Transparency” advocating that the public should no longer have access to executive branch emails.  Fortunately, the openness community was quick to thoroughly explain why the public’s right to use FOIA to request government email is critical to maintain.

Here is my rebuttal for the National Security Archive, which shows that many of his claims are ahistorical and inaccurate.

CJ Ciaramella was the first to explain that there already is an oft abused FOIA exemption that already protects the very type of records which Yglesias argued needed to be protected.

And Michael Morisy wrote an excellent piece for Muckrock explaining why many of Yglesias’s ideas about FOIA were misconceptions.  Here’s my favorite line: ” If you read any accountability journalism, it’s amazing how often emails received through public records requests and the Freedom of Information Act provide a pivotal role. If anything, stories based on public records stories tend to be the antidote to the ‘hot take’ culture that Yglesias worries is corrupting good government.”

After Yglesias’s piece, Kevin Drum of Mother Jones wrote an article taking aim at FOIA, claiming  that it “is not that she’s [Hillary Clinton’s] done anything especially wrong, but that a story can last forever if there’s a constant stream of new revelations. That’s what’s happened over the past four years. Between Benghazi committees and Judicial Watch’s anti-Hillary jihad, Clinton’s emails have been steadily dripped out practically monthly, even though there’s never been any compelling reason for it.”  Of course, Hillary Clinton’s obstruction of the Freedom of Information Act and Federal Records act was especially wrong (more below) and the “compelling reason” for the release rate was a judicial order, because the State Department’s proposed FOIA release schedule was glacially slow (State currently has pending FOIA requests over ten years old –page 31).

Fortunately, as these attacks on FOIA keep popping up, there is a 20 page go-to rebuttal explaining “Why Critics of Transparency Are Wrong,” written by Gary Bass, Danielle Brian, and Norman Eisen.  I guess we’ll have to keep it on file.

An "insider threat?"

An “insider threat?”

Here’s a fun one:  The Associated Press’s Ted Bridis filed a FOIA for “media leaks investigation.” Got a doc about a plumbing report.

The response to Bridis reminds me of the time I filed a FOIA for dox on “Operation RYaN” (while working on my book on the 1983 Able Archer nuclear War Scare) and got a document from DIA saying “I approve [of some random] operation, Ryan.

Nearly three years?

Nearly three years?

The federal government has taken almost three years to declassify this simple map of Iraq.  The reason: The FOIA Referral Black Hole.  Someone at DOD believed it was appropriate to send it over to CIA for a review rather than make the simple decision to release it himself.  There really are multitudes of simple processing fixes (like this) and erroneous processing decisions we can eliminate (like this) that can make FOIA operate much more efficiently before beginning to tackle the deeper problems such as funding, etc.

Some Clinton news: In a transparent move, the FBI released her investigatory 302 file, which is an interesting read, especially from a Federal Records Act / FOIA perspective.  Here is the best summary from that perspective that I’ve found.  As OpentheGovernment.org’s Patrice McDermett aptly concludes, “It was irresponsible of state to let her do it…I know it’s difficult to manage the head of your agency and tell her she can’t do something. But, the attorneys should have told her she can’t do this.”

In another memo to employees, FBI Director Comey stated that the case to indict Clintion “was not a cliff-hanger.”  But as Marcy Wheeler reminds us, scope of the FBI investigation did not cover FOIA or Federal Records Act transgressions –the transgressions which the NS Archive considers to be the most serious.  Maybe that would have been “the cliffhanger.”

Note the "not for public release" stamp on the top. I wonder what else has not yet been released.

Note the “not for public release” stamp on the top. I wonder what else has not yet been released.

And, the Icing on top: This email from Clinton’s predecessor as SecState Colin Powell sent to the email address hr15@att.blackberry.net shows that evading public records laws at State was a bipartisan endeavor:

However, there is a real danger. If it is public that you have a BlackBerry and it it government and you are using it, government or not, to do business, it may become an official record and subject to the law. Reading about the President’s BB rules this morning, it sounds like it won’t be as useful as it used to be. Be very careful. I got around it all by not saying much and not using systems that captured the data. [Typos in the origional email.]

The public’s right to know.  A In real danger indeed.

A couple quickhits from TheMemoryHole2: Material from the Justice Dept’s FOIA Litigation Seminar and Material from the Justice Dept’s Advanced FOIA Seminar.  Let me know in the comments and twitter what’s important in these.  Do they comply with the improved law?  What about fees if an agency misses its 20 day deadline? Exemption Five as discretionary?

An example of a “poisonous umbrella.” From PBS, “Secrets of the Dead.”

An example of a “poisonous umbrella.” From PBS, “Secrets of the Dead.”

And your #tbt.   Thirty eight years ago yesterday Bulgarian Dissident Georgi Markov was killed by a poisonous umbrella on Waterloo bridge.

Happy FOIAing!!

2 Comments leave one →
  1. September 15, 2016 11:37 pm

    Has anyone ever been prosecuted for violating the Federal Records Act or the Freedom of Information Act?

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