Congress Needs to Declassify Its Records, Too FRINFORMSUM, 9/15/2016
[Ed. Note: Pinch Hitting again for Lauren this week. Will do my best!]
This week, the National Security Archive joined over thirty organizations calling for strengthening congressional oversight of executive branch intelligence activities. The strategy and tactics for this strengthening are laid out in an excellent bipartisan white paper drafted by Demand Progress, The Electronic Frontier Foundation, R Street, and FreedomWorks. The white paper argues that the best, most realistic method to achieve this reform is to update the rules of the House Permanent Select Committee on Intelligence (HPSCI) at the outset of the 115th Congress.
Read the white paper for a briefing on the abundance of achievable rules changes that the House could make to increase intelligence oversight. I want to flag four of the paper’s reforms that are near and dear to the Archive, and should be pushed by all historians and document hounds.
•Regularly—and no less frequently than every two years—oversee declassification reviews of closed-session transcripts and publish them;
• Establish a process to review and process historical records for declassification;
• After 25 years has elapsed, apply the procedures outlined in the Executive Order on Declassification to the Congressional Record and classified legislative histories; and
• Publish current and historical reports on Committee activities online.
For more on Secret Sessions, see Unredacted’s So What Does Congress Talk About During Its Secret Sessions?
The Government Accountability Office has released a report on FOIA litigation costs, which included several startling facts. First, GAO reported that the DOJ, responsible for “oversee[ing] agencies’ compliance with FOIA requirements,” does “not track any expenses related to FOIA lawsuits” –as their case management systems apparently “were not designed” to do so. (Seventeen agencies could provide GAO with this information.) As such, GAO was forced to use other, public data to complete its study, including data from the indispensable FOIA Project.
According to the report, there were 1,672 Freedom of Information Act (FOIA) lawsuits between 2009 and 2014. Of these, GAO identified 112 where the plaintiff substantially prevailed. (It’s important to note that just because a plaintiff does not “substantially prevail” does not mean they did not “win;” very often, agencies, realizing their position is untenable, agree to release documents after they are sued but before a judgement is made.
According to the report, “For fiscal years 2009 through 2014,  agencies collectively reported costs totaling $144 million for all of the FOIA lawsuits that they defended.” And if you read the report closely, it appears likely that this number is an underestimation by the GAO.
So, to summarize: If someone at DOJ had decided that these 112 cases were fiscally or morally indefensible and simply released the information when it was requested, rather than fighting and losing a lawsuit before releasing the documents anyway, taxpayers’ coffers would be at least $144 million dollars fuller.
This week DOJ published its Template for Agency FOIA Regulations. They will need a thorough scrub from the requester community to ensure that the recommended language complies with the law and is in step with the President’s and Attorney General’s guidance on FOIA.
On first blush there appear to be major problems with the DOJ’s section on FOIA fees, which diverges far from the principles recommended by the Federal FOIA Advisory Committee in April, 2016. From my reading, the DOJ’s guidance appears to present fees as a cudgel to deter FOIA requests, out of step with the Presumption of Openness. The Template presents an overly strict definition on “news media,” not stipulating that online-only sources qualify; they do not recognise that FOIA fees cover less than one percent of the reported FOIA cost; and they do not advise that agencies may use their administrative discretion (rather than a formal fee waiver) to decide not to charge FOIA fees when in the interest of the United States Government.
It would be a great tragedy if agencies updated their regulations (as required by the FOIA Improvement Act) to actually inhibit the public’s right to know.
Troublingly, according to Adam Marshall, two agencies have already updated their FOIA regulations without providing for public comment.
A “partial release.” It’s important to remember that when a DOJ or other Obama official cites a “91 percent whole or in part” FOIA release rate, this, and millions of pages like it, is counted as a “release in part.” The government also does not count requests denied over fees, referrals, “no records” responses, and requests “improper for other reasons” in this dubious statistic.
Here is an index of some of Secretary of Defense Donald Rumsfeld’s meetings in 2003. It’s unclear to me what exactly the “tapes” refer to. All are FOIA or MDRable…
In theory. Astonishingly, the ODNI makes the claim that it has “no documents” related to any of the widely reported March, April, and May 2011 National Security Council meetings where the potential location of Osama bin Laden was discussed. Either the ODNI FOIA shop is incompetent (though the FOIA response signatory, Jennifer Hudson, assures us that additional searches were conducted “to verify the accuracy” of the denial), or the US government has successfully snubbed its nose at the public’s right to know, and conspired to put these documents behind the reach of FOIA –-probably by transferring ODNI documents to the CIA, which can claim the “Operational Files Exemption” to hide them forever. The legality of this transfer is certainly legally dubious. I wonder if IContheRecord will be willing to explain why it cannot find documents about this critical moment in history.
And some exciting news! Mark your calendars for November 2, at 3:00 ET. I’ll be doing an Ask Me Anything on Reddit, talking about my new book on Able Archer 83, the National Security Archive, FOIA, secrets, and anything else!
Finally, here’s a #TBT to one of my favorites, Acoustic Kitty.