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CBP Response to Travel Ban Under Renewed Scrutiny Thanks to FOIA Request: FRINFORMSUM 8/3/2017

August 3, 2017

Photo Credit: CNN

CBP Response to Travel Ban Under Renewed Scrutiny Thanks to FOIA Request

Documents released through the FOIA confirm that the agency ordered its employees to stonewall members of Congress and lawyers during the first hours of the travel ban. The released emails show a number of reactions from Customs and Border Protection to the ban, ranging from senior agency officials being “caught off guard just as badly as those travelers,” to instructing employees to intentionally ignore attorneys calling with questions about the Executive Order and detainees. CBP employees were ostensibly told to forward all Congressional inquiries to the office of Congressional Affairs, but at least one member of Congress – Rep. Gerry Connolly, Democrat from Virginia – says that the OCA didn’t answer any of his questions during the ban either, adding “They built a stone wall and gave us the middle finger.”

The FOIA-released documents also show how carefully CBP monitored the protests. “One email listed how many protesters were at major airports as of the evening of Jan. 29: 2,500 at JFK in New York, 1000 at Dallas-Fort Worth, 1000 at LAX, 800 in San Francisco, and 300 at Dulles.” The emails also contained “more than a dozen photos of groups protesting at airports,” alarming some privacy advocates.

Coast Guard Spent $6.6 Million to Protect Trump at Mar-a-Lago

The Coast Guard has spent $6.6 million protecting Mar-a-Lago over the course of President Trump’s seven weekend trips there (a running tally of Trump visiting his properties can be found here). The figure was revealed thanks to a FOIA request from The Washington Post to the Coast Guard – and shortly after Trump threatened to cut the agency’s budget by 14 percent (the White House later adjusted the cut from 14 percent to 2.4).

Trump’s Mar-a-Lago visits cost the Guard (and taxpayers) roughly $1 million a trip. At the same time, Coast Guard commandant Adm. Paul Zukunft said in a recent interview with CBS that the Guard was delaying fleet maintenance and didn’t have enough planes and ships to pursue potential drug shipments.

In response to questions about the extraordinary cost of safeguarding Trump, his family, and his properties, White House spokesperson Stephanie Grisham said: “He is not vacationing when he goes to Mar-a-Lago. The president works nonstop every day of the week, no matter where he is.”

Drone Program in Pakistan Not a Legitimate Secret

The ACLU is asking an appeals court to compel the government to take a sensical approach to secrecy surrounding the drone program in Pakistan and allow the public a fair fight under the FOIA.

While former Secretary of State John Kerry and President Obama have both acknowledged the program – in interviews and Google Plus hangouts respectively, the government continues to maintain that the program has not been officially acknowledged and refuses to process the ACLU’s FOIA request on the subject. Problematically, “Under FOIA, courts have held that information is ‘officially acknowledged’ only when the government has made public, on-the-record statements that specifically confirm it.”

Taking the Alice-in-Wonderland secrecy a step further, in response to the ACLU’s challenge, the government has even redacted “a court ruling against government secrecy (yes, really), hiding from the public its reasons for why the ruling should remain secret. Then, it also hid its reasons for appealing that ruling to a higher court.”

Image credit: ACLU

The ACLU is asking the court, in effect, for a fair shot at the documents: “The ACLU has endeavored to respond to the government’s arguments as comprehensively as possible. However, almost 60% of the publicly filed version of the government’s opening brief is redacted, and the government has eliminated every reference to the district court ruling that it challenges from its brief and the opinion itself. It is therefore possible that the ACLU misconstrued or failed to identify some of the government’s arguments.”

Judge Tells FBI 17 Years Too Long to Wait for FOIA Response, Make it Three

US District Court Judge Gladys Kessler told the FBI it couldn’t make a FOIA requester wait until 2034 for a response to a FOIA request. The request, filed by George Washington University professor and documentary filmmaker Nina Seavey, seeks agency records “pertaining surveillance of anti-war and civil rights activists in the 1960s and 1970s.” Seavey is specifically interested in records focusing on “the ‘ripple effects’ of the May 4, 1970, shooting deaths of four students by national guardsmen at Kent State University in Ohio.”

The FBI, which says it has “a policy of processing and releasing large requests at a pace of 500 pages a month” and estimated Seavey’s request would require processing 110,000 pages, argued that it would take 17 years to complete processing. The DOJ went further, arguing that “going faster than 500 pages a month would disrupt the agency’s workflow and create the possibility of a few massive requests effectively shutting down the rest of the their FOIA operation.”

Judge Kessler shot the DOJ down, saying “The agency’s desire for administrative convenience is simply not a valid justification for telling Professor Seavey that she must wait decades for the documents she needs to complete her work.” Kessler, who also called the information the FBI provided to justify why it could only process 500 pages a month “unilluminating,” ordered the agency to process 2,850 pages a month, meaning Seavey will get the records within three years.

The FBI’s “Sex Deviate Program”

The FBI recently lost a FOIA suit to the Mattachine Society of Washington over an Eisenhower-era program, known as the “Sex Deviate Program,” to fire gay employees. (NPR has more on the program here.) The Executive Order that served as pretext for firing gay employees is EO 10450, signed in 1953, “and ostensibly gave the heads of federal agencies the ability to investigate and dismiss government employees if they posed a risk to national security.” The firing was already taking place, but the EO made the practice legal on “the basis of sexual perversion.”

The FBI responded to the initial FOIA by producing 552 pages and withholding 583. The Mattachine Society, suspicious of the relatively few responsive documents identified for a 40 year program, sued for a more thorough search. (The FBI’s FOIA search is notoriously and intentionally bad, more on the Ryan Shapiro suit that breaks down just how bad here.)

The Court found the FBI’s search was not adequate. Specifically, the Court found “The FBI’s response fails to demonstrate that their search was reasonably calculated to uncover all relevant documents. The locations searched and search techniques employed by the FBI, as outlined in the Second Hardy Declaration, are sufficient, but the limited nature of the terms used, and the complete failure to search for documents related to Warren E. Burger, are wholly insufficient.” The Court also found that the bureau did not properly invoke exemptions 6 and 7(c).

FOIA Suit for FBI Records on Roger Ailes

Gizmodo is suing the FBI under the FOIA for records the bureau has on ousted Fox News head, Roger Ailes. Gizmodo filed a FOIA request after Ailes’ May 18 death, but the FBI didn’t respond in that statutory 20-day time period. The complaint was filed in the US District Court for the Southern District of New York. A FOIA tip for those filing requests for FBI files on people who’ve died: always include an obituary – no matter how well known the death.

TBT Pick – Prelude to Iguala: “Heavy-handed police tactics” used against Ayotzinapa students in 2011

This week’s #tbt pick is a 2015 posting showing US Ambassador to Mexico, Earl Anthony Wayne, said that “evidence of heavy-handed police tactics” was “strong and disconcerting” after a 2011 clash with student protestors from Ayotzinapa normal school left two youths and a gas station employee dead and several others wounded, according to a declassified cable from the U.S. Embassy in Mexico City. Authorities in the Mexican state of Guerrero “reacted defensively and insensitively by blaming the victims and denying any responsibility” for their part in what the Embassy cable called a “chaotic student protest” in which “both police and protestors resorted to violent tactics.”

The 2011 Embassy document describes how “about 500” students from Ayotzinapa and allied organizations blocked a tollbooth along a federal highway near the city of Chilpancingo and demanded a meeting with Guerrero governor Angel Aguirre Rivero to discuss deteriorating conditions at the state-funded school. Both state and federal police participated in the ensuing confrontation.

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Happy FOIA-ing!

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