DOJ Updates FOIA Regulations, Don’t Call it a Leak, and Much More: FRINFORMSUM 1/5/2017

DOJ Updates FOIA Regulations

The Justice Department updated its FOIA regulations in accordance with the FOIA Improvement Act of 2016, which was signed into law by President Obama on June 30, 2016, and requires all agencies to update their FOIA regulations within 180 days after the passage of the bill – which means, by my count, all agencies should have updated their FOIA regulations as of December 27, 2016.

The DOJ has published an interim final rule to its regulations, effective February 3, to give requesters 90 days to file FOIA appeals and instructed component agencies to notify requesters of both the “FOIA Public Liaison and the Office of Government Information Services (OGIS) to provide assistance at various stages throughout the request process.”

The DOJ also amended its fee provisions. According to the interim final rule, “these updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester.” Thanks to Michael Ravnitzky for pointing out this language.

Don’t Call it a Leak

A FOIA request to the National Security Agency reveals that the agency disclosed classified information to the press “at least” three times in 2013. Steve Aftergood reports that, according to the agency, “the disclosures were not ‘leaks,’ or unauthorized disclosures. They were, instead, authorized disclosures. For their part, the reporters agreed not to disseminate the information further.” Congressional Notification — Authorized Disclosures of Classified Information to Media Personnel specifies that, “Noteworthy among the classified topics disclosed were NSA’s use of metadata to locate terrorists, the techniques we use and the processes we follow to assist in locating hostages, [several words deleted] overseas support to the warfighter and U.S. allies in war zones, and NSA support to overall USG efforts to mitigate cyber threats. The [deleted] personnel executed non-disclosure agreements that covered all classified discussions.”

The NSA cites Executive Order 13526 for the “authorized disclosures,” which Aftergood calls a “generous interpretation” as the EO doesn’t mention the press. Aftergood maintains, however, that, “the report accurately reflects the true instrumental nature of the classification system. That is, the protection of classified information under all circumstances is not a paramount goal. National security secrecy is a tool to be used if it advances the national interest (and is consistent with law and policy) and to be set aside when it does not… The concern, rather, is that the power of selective disclosure of classified material can be easily abused to manage and to manipulate public perceptions.”

Appeal Timeline Run-Around

On October 5, 2016, the United States Patent and Trademark Office (PTO) advised the American Center for Equitable Treatment (the Center) that it had 90 days to respond to a FOIA denial. The Center appealed the denial 42 days later – on November 16 (in its appeal the Center points out that PTO abused FOIA exemption 5 “by unlawfully claiming non-existent attorney-client privileges” and not taking steps to release segregable information). On December 19, the PTO denied the Center’s appeal solely on the grounds that it was untimely, even though it was submitted well within the timeline. The Center is now suing the PTO in federal court for violating the FOIA. Thanks to Josh Gerstein for pointing out this FOIA run-around on Twitter.

Chicago

Last year Chicago paid plaintiffs in public records lawsuits “nearly five times what the city paid in the previous eight years combined” – almost $670,000 spread across 27 FOIA cases, 19 of which involve the Chicago Police Department. Some argue that the increase may be due in part to the public’s increased awareness of what records they are entitled to under the FOIA after video footage emerged of CPD Officer Jason Van Dyke shooting Laquan McDonald 16 times (a judge ordered the city to pay $97,500 for wrongfully withholding the video footage). “Other FOIA lawsuits in which the city paid plaintiffs involved issues such as automatic license plate readers, missed court dates by police officers and the case of Dante Servin, the Chicago police officer who fatally shot Rekia Boyd in 2012 but was acquitted by a Cook County judge who said prosecutors brought the wrong charge.”

Chicago Mayor Rahm Emanuel’s administration is still facing 54 open FOIA lawsuits.

Some DOD Components Still Ignoring 2004 Cyber Directive 

A December 2016 Defense Department Inspector General report on cybersecurity weaknesses notes that, despite a commitment of more than $34 billion over the next five years, the DOD “continues to struggle with ensuring that all aspects of its information security program are adequately implemented.”
It also reports that some DOD components are still not complying with Homeland Security Presidential Directive 12, which mandates a federal standard for secure and reliable forms of identification for federal employees and contractors – and was issued in 2004.

This document is one of a dozen new additions posted in the National Security Archive’s Cyber Vault on Wednesday, January 4.

End of Soviet Union

On Christmas Day 25 years ago, the last leader of the Soviet Union, Mikhail Gorbachev, stepped down and the hammer-and-sickle flags over the Kremlin were replaced with the red-white-and-blue of the Russian Federation. Triumphalists and conspiracy theorists ever since have attributed this monumental event to U.S. policy makers. But close review of the now-declassified documents of all the conversations between American and Soviet leaders published for the first time in the new book, The Last Superpower Summits (CEU Press), shows that keeping the Union together, and backing Gorbachev personally, remained at the core of U.S. policy all the way through 1991, for fear of a bloody disintegration that would dwarf the slaughter taking place at that time in Yugoslavia. “Yugoslavia with nuclear weapons,” as one official put it.

The National Security Archive’s Svetlana Savranskaya and Tom Blanton penned an op-ed for the New York Times commemorating the event and coinciding publication of their new book. The authors note that, just before delivering his farewell speech as president of the USSR, Gorbachev phoned Bush, who was at Camp David for Christmas with his grandchildren. Gorbachev expressed appreciation for all they had done together and his hope for a future partnership in some new form. The U.S. president felt that he was “caught up in history” at some “enormous turning point.” Gorbachev said a simple “good bye” and shook Bush’s hands virtually; Bush responded, “good bye.”

TBT pick: U.S. Intelligence Assessments of Potential Nuclear Powers, 1977-2001

This week’s #TBT pick is a 2013 posting from our Nuclear Vault on intelligence community assessments of potential nuclear powers, including  a heavily excised version of the Director of Central Intelligence report from December 1979 titled The 22 September 1979 Event, referring to the controversial mystery flash over the South Atlantic, which may have been a nuclear test. The massively excised version of the report includes previously unreleased material. However, most of the withheld information — including analysis of whether Israel, South Africa or both were behind the event — was declassified by the CIA years ago. This discrepancy is a prime example of both the enduring problem of over-classification and of the U.S. government’s great difficulty in making consistently rational declassification decisions.

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Happy FOIA-ing!