New CIA Access Rule Bears Watching, and More: FRINFORMSUM 10/6/2016

The CIA has changed its rules for access to classified historical CIA records three times since 2011. Two changes, from September 2011 and August 2016, concern 32 CFR Part 1909’s rules governing access by Historical Researchers and Certain Former Government Personnel – researches like Evan Thomas, author of The Very Best Men. The differences include additional sections on subjects from “Designation of authority to waive need-to-know and grant historical access requests,” to “Receipt, recording, and tasking.” The definition of historical researcher remains similar but with one variation (change from someone “engaged in a research project leading to publication” to “historical research project that is intended for publication.”).

A September 2016 addition to the CIA’s CFR is more substantial and should be of note for those interested in the State Department’s Foreign Relations of the United States (FRUS) publications. The CIA’s September 2016 final rule adds a new CFR part – Part 1911 – that concerns “Special procedures for discretionary access to classified historical Central Intelligence Agency records requested by other federal agencies.” The FRUS is required by 1991 statute – a statute that was passed after the State Department published a 1989 volume on the 1953 Iran coup that received intense criticism for its failure to mention the CIA’s involvement in the coup (a volume that remains withheld) – to present a “thorough, accurate, and reliable” documentary history of U.S. foreign relations. While the CIA rule is new, observers should pay close attention to ensure the end result is not a narrowing of access by State Department researches and others.

Jeffrey Scudder – a former project manager for the CIA’s Historical Collections Division whose hard-fought FOIA lawsuit forced the agency in 2014 to post online 249 Studies in Intelligence articles – is filing a new FOIA suit for 386 documents that the CIA failed to make available electronically with the hopes of ushering in a “paradigm shift” at the agency.

As part of Scudder’s 2014 case against the CIA – which only accepts FOIA requests via fax – he asked that the documents be released in electronic format – the form that they were already in. The CIA, however, continued its common practice of refusing to release soft copies of its records – ostensibly for security reasons – and told Scudder he could only have hard copies of the articles, which would cost Scudder twice as much. The CIA’s action prompted District Court judge Beryl Howell to find that, “Where, as here, an agency asserts nearly twenty years after the passage of the E-FOIA Amendments that it cannot provide any electronic formats because of a lengthy process the agency has created, a court is required by the FOIA to evaluate that process to determine if it meets the statutorily mandated ‘reasonable efforts’ standard…[a] FOIA request for records in an existing format should not be frustrated due to the agency’s decision to adopt a production process that nonetheless renders release in that format highly burdensome.”

The new suit, “co-filed with academics Ken Osgood, a history professor the Colorado School of Mines; Hugh Wilford, a history professor California State University; and Mark Stout, who directs Global Security Studies at Johns Hopkins” attempts to ensure that the 2014 Howell ruling is not a one-time victory. The lawsuit claims “that researchers can literally count on one hand the number of times the CIA coughed up documents electronically to a requester.” It’s worth noting that the CIA’s anti-electronic stance – forcing researchers to travel to College Park, MD to take turns at one of four computer stations to search the CIA’s CREST database – is unique in the intelligence community; the NSA, DIA, NRO and others regularly release FOIA-requested documents electronically with no adverse consequences.

The Intelligence Community penned a letter to both Congressional intelligence committees opposing the restrictions to the Privacy and Civil Liberties Oversight Board contained in the Senate Intelligence Committee’s version of the FY2017 Intelligence Authorization Act. The September 9 letter, signed by ODNI head James Clapper, “‘strongly opposes’ part of the proposed legislation seeking to limit the jurisdiction of PCLOB to the privacy rights of Americans, and not foreigners,” and takes issue with “a provision that would require PCLOB to keep senior intelligence and congressional officials informed about its activities, an arrangement it said would present significant separation of powers concerns.” Senator Ron Wyden (D-Oregon) has a hold on the bill and in July Senator Patrick Leahy (D-Vermont) demanded the PCLOB restrictions be withdrawn.

Last year Republicans on the House Intelligence Committee successfully advanced a provision to the 2016 intelligence authorization bill blocking PCLOB access to information on covert programs. The move was allegedly made after Republicans on the committee were angered by an opinion piece written by former PCLOB chair David Medine, which argued that PCLOB is entitled by law to have “access to all relevant reports and material from any executive branch agency. It may also interview government personnel and ask the attorney general to subpoena the production of any relevant information from the private sector.”

The Chicago Police Department has settled a FOIA lawsuit over documents on the city’s use of cell-site simulators, and is expected to release documents “in about a week.” The city has maintained that the devices are used primarily in high-profile cases, like terrorism cases, but hasn’t proven the use of devices is limited to cases of national security.

A recent Justice Department inspector general report faults the Drug Enforcement Administration for misappropriating millions in payments to confidential sources without appropriate oversight – including paying hundreds of thousands of dollars to one AMTRAK employee “for information that was available at no cost to the government.” The DEA also has a long history of frustrating FOIA requesters, including Providence journalist Philip Eil – who just won a multi-year FOIA lawsuit concerning thousands of pages of evidence from the public trial of Dr. Paul Volkman, which was one of the largest prescription drug trials in American history. Eil recently wrote a very good article for the Columbia Journalism Review recounting six FOIA lessons he learned during his five-year battle with the agency (and the Justice Department, which defended the agency’s bad FOIA stance in court).

The National Security Archive recently posted a collection of newly declassified documents – including transcripts of President George H.W. Bush’s September 27, 1991 phone call to Soviet President Mikhail Gorbachev giving the Soviet leader a heads-up on the imminent White House unilateral nuclear withdrawals announcement – to commemorate the 25th anniversary of the Bush initiative. The announcement drew an eager response from Soviet President Mikhail Gorbachev to produce what experts call “the most spontaneous and dramatic reversal” ever of the nuclear arms race. Other posted documents include Gorbachev’s phone call with Bush on October 5 spelling out the dramatic Soviet nuclear pullbacks that matched and in some cases exceeded the American moves and the actual Pentagon orders to U.S. military commanders on carrying out the nuclear withdrawals, the State Department reports on follow up talks in Moscow, translations of the Soviet transcripts of those talks, and internal Soviet assessments of how much the USSR would save from cutting the nuclear weapons involved in the initiative.

The Archive’s Nuclear Vault director, Dr. William Burr, recently wrote an excellent blog on excessive and unnecessary Secrets of the Cuban Missile Crisis. Burr argues that while more has been learned about the Cuban Missile Crisis in recent decades – like Soviet tactical nuclear weapons in Cuba – the US government continues to keep significant elements of the history secret, including most of the agent reports on the deployment of Soviet missiles in Cuba. Burr has filed a pending appeal for the 7^th Air Division in the Cuban Crisis: A Study of Actions in the Emergency before the Interagency Security Classification Appeals Panel, and notes that it “will be an interesting test of whether the Air Force is influential enough to prevent the declassification of such basic information as the number of alert B-47s at bases in the United Kingdom during the Cuban Crisis.”

Reporters Committee for Freedom of the Press just launched a beta of its anticipated new project, the FOIA Wiki. FOIA Wiki is a collaborative FOIA resource that “is part legal guide, part community space for sharing information that aims to serve as a central hub on all manner of issues surrounding FOIA as the law celebrates its 50th anniversary.” The site features, among other things, a “forum where users can post questions and answers about FOIA, as well as discuss problems or thoughts regarding particular records or agencies;” anyone can access the Wiki, you’ll need to create a free account to make modifications. Check out the “help wanted” link to see where FOIA Wiki most needs user input.

The National Freedom of Information Coalition’s 2016 FOI Summit begins tomorrow, October 7, in Washington, DC, and runs through Saturday. There are plenty of panels to check out, including Friday afternoon’s “FOIA @ 50” panel, moderated by Miriam Nisbet, founding director of the Office of Government Information Services, and featuring Archive director Tom Blanton, political activist Ralph Nader, and Founding President of the D.C. Open Government Coalition, Tom Sussman.

In case you missed it, last week the British National Archives declassified 137 top secret files covering “a range of subjects and span the interwar years, Second World War and post-war era up to the mid 1960s. Personal files include individuals classed as Second World War double agents, Soviet intelligence officers, communists and suspected communists including Russian and communist sympathisers.”

This week’s #tbt pick is a 2011 posting by the Archive’s Colombia Documentation Project director Michael Evans on the assassination of beloved Colombian journalist and political satirist Jaime Garzón.

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Happy FOIA-ing!