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FCC Stonewalling FOIA Requests on Net Neutrality Rollbacks: FRINFORMSUM 7/27/2017

July 27, 2017

FCC Says No Written Documentation on Claimed DDoS Attack that Crashed Public Comments System during Net Neutrality Controversy

The Federal Communications Commission (FCC) is in Unredacted’s hot seat again for the second week in a row concerning its responses to FOIA requests on proposed net neutrality rollbacks.

This time the FCC is under fire for telling a FOIA requester seeking information on an alleged DDoS attack the agency claimed disrupted its online public comment system that there were no responsive documents to the FOIA request because the agency’s “initial analysis on the day of the attack ‘did not result in written documentation.'” The alleged attack came after the FCC chair, Ajit Pai, proposed to “dismantle net neutrality rules” – rules that he’s previously said were a response to “‘hypothetical harms and hysterical prophecies of doom’ and that there was no real problem to solve” – and HBO’s John Oliver encouraged the public to comment on the proposed changes.

Gizmodo filed a FOIA request concerning the alleged attack on May 22, specifically requesting documents related to public comments made by FCC Chief Information Officer David Bray about the agency’s analysis. The agency released 16 pages and withheld 209 more in full – with cited exemptions running the gamut from trade secrets to personal privacy, including an exemption protecting medical files. (Even if there is personal information in responsive records, FOIA mandates that agencies release all segregable portions of documents.)

Amazingly, the FCC also claimed that “IT staff have confirmed there are no records responsive” to portions of the request concerning the analysis of Bray’s statements, going on to say “The analysis referred to stemmed from real time observation and feedback by Commission IT staff and did not result in written documentation.”

Senator Ron Wyden (D-Ore.) said “the FCC’s response to the FoIA request raised ‘legitimate questions about whether the agency is being truthful when it claims a DDoS attack knocked its commenting system offline.’”

The FCC is also facing a FOIA lawsuit brought by American Oversight, which filed suit after the agency failed to respond to FOIA requests for “records related to net neutrality, including the calendar entries for Pai and his advisors.”

Last week the FCC incorrectly claimed that reviewing net neutrality complaints in response to a FOIA request was “too burdensome.”

NARA Releases Controversial CIA Records Schedule, Doesn’t Address Concerns or Pause Approval

In response to public outcry from the National Security Archive and others, the U.S. National Archives (NARA) has released the CIA’s controversial proposed records schedule that, if approved, would let the agency begin destroying a large number of potentially important documents, as well as NARA’s own appraisal of the schedule. But NARA did not address the critical concerns or pause the approval as requested.

The records slated for destruction include classified information related to the Agency’s official actions abroad, investigative files from the offices of the Inspector General, Security, and Counterintelligence, and files relating to CIA assets (spies) that the CIA itself does not deem “significant.” A letter raising these issues and requesting NARA pause its approval signed by the National Security Archive, OpenTheGovernment, Defending Rights & Dissent, and Demand Progress is available here.

NARA instead notes that it is “in the final stages of the records scheduling process with CIA to authorize the disposal after 30 years of various categories of administrative and program records.” Questions about the schedule and NARA’s appraisal should be directed to records.management@nara.gov.

Can a Sitting President be Indicted?

A 56-page memo won by The New York Times in response to a FOIA request to the National Archives “amounts to the most thorough government-commissioned analysis rejecting a generally held view that presidents are immune from prosecution while in office.” The memo – written in 1998 by Ronald Rotunda, a consultant for Ken Starr’s independent counsel investigating President Bill Clinton – found: “It is proper, constitutional, and legal for a federal grand jury to indict a sitting president for serious criminal acts that are not part of, and are contrary to, the president’s official duties.”

Times’ reporter Charlie Savage notes, “Other prosecutors working for Mr. Starr developed a draft indictment of Mr. Clinton, which The Times has also requested be made public. The National Archives has not processed that file to determine whether it is exempt from disclosure under grand-jury secrecy rules.”

DC FOIA Suit Seeks Autopsy Report of Putin Aide

Mike Eckel, a senior correspondent for Radio Free Europe/Radio Liberty, is suing D.C.’s Office of the Chief Medical Exam officer in the D.C. Superior Court for failing to turn over an autopsy report of former Putin aide, Mikhail Lesin. Lesin was found dead in a D.C. hotel in November 2015 after an alleged feud with “Yuri Kovalchuk – the main shareholder of Bank Rossiya, which is closely tied to Putin.” Eckel’s FOIA suit also seeks correspondence between the medical examiner’s office, the FBI, and the State Department concerning Lesin’s death.

Buzzfeed’s investigative news team has an explosive four-part series on extrajudicial Kremlin-linked assassinations here: Poison in the System; From Russia With Blood; The Man Who Knew Too Much; and The Secrets of The Spy in the Bag.

FOIA Helps Reveal NSA, FBI Spying Violations

Memos obtained through a FOIA lawsuit brought by the ACLU show that the National Security Agency and the FBI “violated specific civil liberty protections during the Obama administration by improperly searching and disseminating raw intelligence on Americans or failing to promptly delete unauthorized intercepts.” The memos chronicle violations reported to the Foreign Intelligence Surveillance Court and the DOJ’s national security division between 2009 and 2016.

The NSA says the “missteps” account for less than one percent of “taskings,” but The Hill reviewed the memos, along with NSA IG reports, and found “more than 90 incidents where violations specifically cited an impact on Americans. Many incidents involved multiple persons, multiple violations or extended periods of time.”

The Hill also found that “The new documents show that the NSA has, on occasion, exempted itself from its legal obligation to destroy all domestic communications that were improperly intercepted” through the creation of “destruction waivers,” even though the agency found “significant violation” of such waivers in 2012.

Timely Read on 1980’s October Surprise  

MuckRock’s Emma Best has an interesting read on a declassified CIA memo, the Iranian hostage crisis, and the 1980 presidential election. Best summarizes the import of the memo well, noting: “While the memo doesn’t confirm the Reagan campaign’s collusion, it does prove a shared goal between the Iranians and the Reagan campaign – the defeat of President Carter. It also matches the timeline of allegations as well as the other known facts. That there appears to be no mention of it in the Task Force Report which is widely cited as discrediting the October Surprise is significant. The memo also addresses long standing objections to the October Surprise allegations by discussing Khomeini’s indifference to the identity of the next POTUS as opposed to his desire to see the current administration defeated.”

JFK Assassination Records

NARA began releasing JFK assassination records online this week. “This set of 3,810 documents is the first to be processed for release, and includes FBI and CIA records—441 documents previously withheld in full and 3,369 documents previously released with portions redacted. In some cases, only the previously redacted pages of documents will be released.”

TBT Pick: Kissinger to Ford – “Smash” Rumsfeld

This week’s #tbt pick details declassified telcons showing conflict during the Ford administration over, among other things, arms control, détente, and leaks. Senior Analyst Bill Burr says of the declassified transcripts, “These telcons show Kissinger losing his authority at the White House, trying to protect U.S.-Soviet détente from conservative attacks while waging Cold War in the Third World, trying to crack down on leaks, and maintaining ties with the disgraced former President Richard Nixon.” One telcon records Kissinger lamenting to President Ford about leaks on Angola, “almost every day I am in there crying” about them.

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Happy FOIA-ing!

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