Exemption 5 Can’t Go International: FRINFORMSUM 3/30/2017
Court Says FOIA’s Exemption 5 Protections for “Inter-Agency” Communications Don’t Apply to Foreign Agencies
The Sixth Circuit Court of Appeals ruled that the FOIA’s Exemption 5 – the oft-abused “deliberative process” exemption that allows the government to withhold inter and intra-agency communications – does not apply to communications with foreign agencies. In the case, Lucaj v. FBI, the FBI tried to argue that B5 protected requests for assistance between the agency and Austria and another unnamed country as part of an investigation into a man suspected of meddling in elections in Montenegro. Judge Karen Nelson Moore did not agree with the bureau, writing that “inter-agency” protections require both the sender and receiver be an agency or authority of the United States. Lawfare’s Michael Linhorst writes, “The court also rejected the government’s argument that the requests at issue are covered by the ‘common-interest doctrine,’ which ‘permits parties whose legal interests coincide to share privileged materials with one another in order to more effectively prosecute or defend their claims.’”
Air Force Looks to Embrace Proactive Disclosure
A new Air Force Instruction orders the agency and its components to adopt an information policy of “maximum disclosure, minimum delay.” The Instruction highlights the importance of proactive disclosure, saying that Air Force FOIA reading rooms should post information “that has been requested via FOIA or could be requested via FOIA.” Doing so, as the Air Force notes, would both contribute to the “free flow of information between the public and the government,” and would also “minimize the federal paperwork burden on the public, minimize the cost of its information activities, and maximize the usefulness of government information.” Steve Aftergood published the new Instruction on his website, noting that, “By itself, the new policy does not mean that the Air Force is now practicing maximum disclosure or that it will necessarily do so in the future. The policy is not self-enforcing. Still, it represents an official statement of Air Force values, and it therefore provides a point of leverage that can be used by anyone, in the service or among the public, who would seek to uphold those values in practice.”
If you’ve ever run across a FOIA reading room made almost inaccessible by a security certificate saying that the connection is not private, please add them to the FOIA.wiki’s page cataloging FOIA Reading Room Errors. Current known offenders are the Army, CENTCOM, and the Air Force – who are we missing?
OGIS Report Highlights Where Compliance, Recommendations Stand
The Office of Government Information Services’ (OGIS) 2016 annual report, Building a Better FOIA Process, is a good overview of both OGIS’s accomplishments and workload over the last year (787 cases opened in FY 16 quarter 4 alone). The report also has an informative overview of where agencies stand working towards OGIS’ compliance recommendations and recommendations to agencies:
FOIA Request Shows Robert Mercer Funded Milos Yiannopolous’ College Speaking Tour
A FOIA request to the University of Washington from MuckRock user Matthew Guariglia seeking information on Milo Yiannopolous’s college campus speaking tour, particularly his speaking fee, shows hedge-fund billionaire Robert Mercer funded the endeavor. Mercer funded the trip through a small production company, Glittering Steel, LLC, which also made contributions to President Donald Trump and Senator Ted Cruz’s presidential campaign. Mercer, along with his daughter Rebekah, have also invested a reported $10 million in Breitbart News, Yiannopolous’s former employer.
IRS Sends MuckRock Password Protected Glomar
The IRS responded to a MuckRock FOIA request for financial investigations into three Ukrainian nationals with a locked, unreadable PDF. A separate email contained the password, which ultimately opened the PDF. What did the PDF reveal? A Glomar response – the agency could neither confirm nor deny any of the records sought.
Number of Exemptions to Florida’s Disclosure Law Tops 1,000
There are 1,119 exemptions to Florida’s Sunshine Law. Florida’s First Amendment Foundation tracks the carve-outs, and the Florida Society of News Editors recently launched a project to commemorate Sunshine Week that will keep a “scorecard” to track the foundation’s priority list of public records exemptions. FSNE members will create a permanent scoring system to grade legislators on their introduction of bills and their final votes.” Some of the exemptions include a law exempting autopsy photos from public release, and a proposed bill that would exempt all information about crop-dusting information.
Secret South Korean Nuclear Weapons Program Created Anxiety in Washington in Mid-1970s
President Park Chung-hee reportedly instructed South Korean scientists to build nuclear bombs by 1977, according to a secret report to Secretary of State Henry Kissinger newly posted by the National Security Archive. The Ford administration accumulated other evidence that raised worries about proliferation and regional instability. The posting, the first of two on US policy toward South Korea’s atomic weapons program in the mid-1970s, is based on a wide variety of declassified sources, including records released through mandatory declassification review. They offer an account of the first stages of what became a successful U.S. effort to keep an ally from engaging in destabilizing proliferation activity in one of the world’s enduring trouble spots.
The National Security Archive’s Kate Doyle participated in PBS’s recent three-part documentary, Dead Reckoning, which “follows war crimes investigators and prosecutors as they pursue some of the world’s most notorious war criminals…The principles, legal doctrines and tactics that emerged from those pursuits now inform the effort to expose, prosecute, and punish present day human rights violators whose depredations have left millions dead and displaced.”
Doyle, the Archive’s Guatemala Documentation Project director, is featured in part two’s Guatemala sequence that also includes Claudia Paz y Paz, Fredy Peccerelli, and Naomi Roht-Arriaza, among others.
TBT Pick – Drugs and the Guatemalan Military
This week’s #TBT pick is chosen with the PBS documentary in mind and is a 2005 posting that highlights investigative journalist Frank Smyth’s work “documenting links between retired Guatemalan military officers and drug trafficking in the United States.” Smyth’s work uses declassified US documents obtained by the National Security Archive’s Guatemala project through the FOIA. Records provided by the National Security Archive for the story describe a powerful and brutal military institution with intimate ties to the United States and a history of corruption. They include information on:
- Scorched-earth tactics used by the Guatemalan army during the 30-year civil conflict that resulted in hundreds of thousands of dead and missing;
- The existence during the war of a secret fraternity of senior intelligence officers, many of whom are suspected today of collaborating in criminal enterprises;
- The military’s vast web of informants available to them during and after the conflict;
- The reluctance of the U.S. to alienate the Guatemalan military, even as the war ended and the Clinton administration was aware of military involvement in grave human rights abuses, corruption and drug trafficking;
- How one corrupt ex-officer, Lt. Col. Carlos Ochoa Ruiz, used his connections in the military to protect drug trafficking and car smuggling operations inside Guatemala.
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