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DOD Tries to Revive Bad FOIA Exemption: FRINFORMSUM 6/15/2017

June 15, 2017

DOD Trying to Expand FOIA Exemptions for Third Year in a Row

The Defense Department is seeking – for the third time in three years – a new FOIA exemption that, if approved, would allow the agency to expand the FOIA’s (b)(3) exemption to withhold “military tactics, techniques and procedures (TTP), as well as rules of engagement, that are sensitive but unclassified.”  The exemption is proposed in the National Defense Authorization Act of 2018, section 1003 (page 20).

The DOD argues, “The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of TTPs or rules of engagement that will be employed in such operations.” The proposal does not exempt all TTP records, only those the Defense Secretary believes would provide an adversary “an operational military advantage.”

But the FOIA already has an exemption that protects properly classified national defense information. The National Security Archive joined a number of open government groups last year in urging the Senate to adopt the Leahy-Grassley Amendments that would strike the proposed FOIA exemption from the Senate National Defense Authorization Act for FY 2017. The amendments didn’t pass, but the language was removed in conference.

Steve Aftergood also noted when it was proposed last year, the proposed exemption “stops making sense where DoD ‘tactics, techniques and procedures’ are themselves the focus of appropriate public attention” – like interrogation techniques and offensive cyber operations that should be subject to vigorous public debate.

The Project on Government Oversight’s Liz Hempowicz told Federal News Radio, “People from DoD were asked by congressional staffers who were working on this whether or not they’ve had to release information previously in a FOIA request that they’d have to withhold under this exemption and [DoD] hasn’t.” Liz also argued that “the provision could be used to blanket other DoD internal documents that might not compromise troops, but are important to the public like sexual assault statistics.”

The DOD has attempted to expand its FOIA exemptions since the 2011 Supreme Court decision in Milner v. Department of the NavyThe decision “significantly narrowed” the scope of FOIA’s Exemption 2, which concerns information related solely to the internal personnel rules and practices of an agency, and the DOD wants to “reinstate the pre-Milner status quo with its more expansive withholding authority.”

Inspectors General Targeted

The New York Times Editorial Board recently published a vigorous defense of the inspectors general of the federal government (independent officials who investigate misdeeds at their agencies) in the wake of the Trump administration’s continued undermining of these critically important positions – by either leaving the positions vacant or proposing drastic budget cuts that would cripple the offices. (Keep in mind that Michael Horowitz, chairman of the Council of the Inspectors General on Integrity and Efficiency, testified before Congress in 2015 that “the offices identified $26 billion in potential savings and recovered an additional $10 billion through criminal and civil cases. That’s a return of $14 for every dollar in the offices’ budgets.”)

As of writing this, “nearly one-quarter of inspector general offices have either an acting director or no director at all, including the offices at the C.I.A., the National Security Agency, the Department of Defense and the Social Security Administration.”

The CIA hasn’t had an inspector general since David Buckley resigned in 2015, delaying sensitive internal investigations, like the one into the drone strike that killed Warren Weinstein, an American hostage being held by Al Qaeda in Pakistan. Prior to resigning, Buckley released a CIA IG report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the torture report in February 2015, only to have the agency decide not to punish any of those involved.

The President’s budget also “takes unexplained specific aim at the Office of the Special Inspector General for the Troubled Asset Relief Program, created in part to monitor the $700 billion taxpayer bailout for big banks. That office has gone after 96 bankers; at least 36 went to prison. In 2015 its investigators helped prosecute General Motors for covering up a defective ignition switch responsible for at least 15 deaths, securing a $900 million settlement. The administration wants to cut its budget in half, to $20 million; as a result it has stopped accepting applications to its foreclosure prevention program.”

No Trump Tapes, Says Secret Service

The Secret Service told the Wall Street Journal in response to a FOIA request that it had no “audio copies or transcripts” of recordings made at the White House by President Trump. The existence of any such tapes has been the topic of debate ever since Trump appeared to threaten former FBI director James Comey over Twitter in May, saying Comey “better hope that there are no ‘tapes.’” Comey later testified before Congress that, “Lordy, I hope there are tapes.” The Wall Street Journal did not rule out the possibility of other agencies have such tapes. Trump has yet to clarify whether there are tapes or not.

DOJ Must Produce Sessions’ Clearance Form by July 12

Federal Judge Randolph Moss for the District Court of D.C. ordered the Justice Department to “make public a page of Attorney General Jeff Sessions’ clearance form, on which he was meant to disclose any contacts with Russian officials.” The decision came in response to a FOIA request from American Oversight and included an order to search for any records of Reince Priebus’ alleged outreach to the FBI concerning the Russia investigation.

NYT Promotes FOIA Litigation – but Don’t Forget to Appeal Even if No Intent to Litigate

David McGraw’s article in the New York Times, “Think FOIA is a Paper Tiger? The New York Times Gives it Some Bite,” draws major attention to the importance of FOIA litigation. Indeed, many of the stories broken by journalists using FOIA are only broken because those journalists successfully sue the agencies in court.

The article, however, is not geared toward the average requester. Most requesters, even many news media outfits smaller than the Times, don’t have the resources to file suit. The best bet for these kinds of requesters is filing a FOIA appeal.

While the article doesn’t directly mention the appeal process (although it is implied since in most instances you are filing suit after an adverse determination on an appeal, although not always), this is a critical step that gets more documents released for requesters in one out of three instances. The flip side of this is that the government improperly withholds information one out of three times – but the vast majority of adverse FOIA determinations go un-appealed. The most recent government statistics from the Justice Department show that government-wide, only four percent of FOIA requests were appealed in FY 2016 (15,095 appeals were filed out of 322,616 denials). If you extrapolate from these findings, that means in FY2016 alone the government potentially improperly withheld information in over 107,500 FOIA requests – and potentially millions of pages of documents that should have been released were not.

Key takeaway? Always appeal, whether you are litigating or not.

Ambassador Gerard C. Smith, responsible for nonproliferation policy during the Carter administration, meeting with President Jimmy Carter, 24 October 1979. Photo: Carter Presidential Library

Japan Plutonium Overhang Origins and Dangers Debated by U.S. Officials

Japan’s long-standing aspirations to develop a “plutonium economy” troubled U.S. officials going back decades as early as the Jimmy Carter administration, according to documents posted by the National Security Archive and the Nuclear Nonproliferation International History Project at the Woodrow Wilson International Center for Scholars.

The Japanese government appealed repeatedly in the late 1970s for authority to utilize American spent fuel for reactor experiments and for acceptance of the country’s right to resource self-sufficiency. Tokyo’s position sparked intense debate within the Carter administration, between those who wanted to avoid damaging ties with Japan and those – including the president – who placed a high priority on curbing the availability of sensitive nuclear technologies.

Among the newly declassified documents in this e-book is a National Security Council memo expressing concern that the inevitable surplus from Japan’s desired processing plans would “more than swamp” global requirements and create a significant proliferation risk involving tons of excess plutonium by the year 2000. Indeed, as a result of reprocessing activities since then, Japan possesses 48 tons of plutonium and could be producing more, with no clearly defined use, when a new reprocessing facility goes on line in 2018, unless Washington and Tokyo renegotiate a nuclear agreement that expires that same year.

Dispatch from Odessa

And here’s an update from Archive FOIA project director and Able Archer 83 expert, Nate Jones, who is currently doing nuclear research in Ukraine on a Nuclear Proliferation International History Project fellowship.

TBT Pick – Archive Petition Cracks Open Investigative File on Mexican Army Massacre

This week’s #tbt pick is a report, published jointly in March 2016 by the Archive and the investigative team at Aristegui Noticias in Mexico and released thanks to an Archive access-to-information request and appeal, provides more detailed evidence about the actions of Mexican Army soldiers accused of executing at least 11 people who surrendered after a June 2014 firefight in Tlatlaya, Mexico.  The Tlatlaya report was released in accordance with the human rights exception in Mexico’s access law and is a major victory for access to human rights information in Mexico. It raises new questions about how Mexican authorities have handled the investigation, the exact number of executions that occurred that day, and why some of the soldiers later changed their testimonies to implicate others in the crime.

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Happy FOIA-ing!

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