Department of State Electronic Email Preservation Rate Hovers under 0.0061%, and Much More: FRINFORMSUM 3/11/2015
By Lauren Harper and Nate Jones
The most important claim made by Hillary Clinton about her use of a private email address and storing the emails on a private server while Secretary of State was that because she sent her official emails to “government officials on their State or other .gov accounts  that the emails were immediately captured and preserved,” and that therefore she had complied with the Federal Records Act, Federal Regulations (36 CFR 1263.22), and US National Archives guidance (NARA Bulletin 2011-03) on preserving email.
A Department of State Office of Inspector General report –released today with little fanfare– casts much doubt that the former secretary’s emails were actually “captured and preserved” as she claimed.
The report found that State Department “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.’ In 2011, employees created 61,156 record emails out of more than a billion emails sent.” In other words, roughly .006% of DOS emails were captured electronically. And in 2013 a paltry 7 emails were preserved from the Office of the Secretary, compared to the 4,922 preserved by the Lagos Consulate in Nigeria. The odds that the account holders of .gov email addresses that the former secretary relied upon to save her emails actually did so are incredibly slim.
Even though the report notes that its assessments “do not apply to the system used by the Department’s high-level principals, the Secretary, the Deputy Secretaries, the Under Secretaries, and their immediate staffs, which maintain separate systems,” the State Department has not provided any estimation of the number of Clinton’s emails that were preserved by recipients through the Department’s –ahem– “print and file” system for preserving digital documents, or any other system.
As the Archive reported earlier, though Clinton was likely in breach of record keeping laws and best practices, a sad silver lining may be that her personal email system preserved emails that the State Department system could not.
Other purportedly personal emails (some 32,000 emails as deemed by Clinton’s team – not FOIA processors) were not preserved. It remains to be seen whether or not it is possible to retrieve the deleted emails from Clinton’s hard drive. As Douglas Cox has argued, the “solution should have been an independent National Archives review of all of Clinton’s emails to determine which were properly considered federal records” as occurred with the federal records that former secretary of state Kissinger incorrectly contended were his personal files.
Former secretary Clinton also avoided directly addressing whether or not her personal email usage impeded the State Department from accurately responding to FOIA requests. In a fact sheet provided by her office, the answer to the question about FOIA (question 9) addressed completely different topics: hacked email and emails requested by Congress. Dan Metcalfe, the founding director of the Department of Justice’s Office of Information Policy (OIP) – responsible for ensuring federal compliance with the FOIA – was less circumspect. He called Clinton’s use of private email a “blatant circumvention of the FOIA [in addition to] the Federal Records Act by people on both sides of it who unquestionably knew better.”
Moving forward, the biggest question about Clinton’s remaining emails, now possessed by the Department of State –in *shudder* paper, not digital format– is how redacted they will be when they are made public.
The State Department recently released the first email associated with Mrs. Clinton’s private email address in connection to a FOIA lawsuit brought by journalist Alexa O’Brien, who in turn shared the email with VICE news. The December 24, 2010, email found in former State Department Spokesman P.J. Crowley’s records, is entitled “WikiLeaks Update,” and is nearly entirely redacted pursuant to the b(5) “withhold it because you want to” exemption.
Mrs. Clinton has said she wants “the public to see” her email and has asked the State Department to review them for release, but the only way the public will see any meaningful documentation is if State Department reviewers embrace a presumption of openness and refuse to use this discretionary exemption to redact any “inter-agency communications” –that is, to blank out entire documents.
UPDATE: On Marcy 13, 2015 Department of State Spokesperson Jen Psaki confirmed that emails at the State Department, including emails that Clinton claimed were “captured in real time” by other state.gov email accounts, were in fact not automatically or routinely archived.
FRINFORMSUM (FReedom of INFORMation SUMmary) continues:
“Emailgate” has called attention to NARA’s reluctance to ask the Department of Justice to prosecute government officials who unlawfully destroy official records. One instance in which NARA did open an inquiry involved Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program that ordered the destruction of key videos documenting it in 2005, claiming that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.” While NARA did initiate an inquiry, the National Security Archive and Docexblog –which has followed the story better than anyone– still have not seen any indication of the inquiry’s completion or findings. The Department of Justice decided not to file criminal charges against Rodriguez in 2010.
U.S. District Court Judge Gladys Kessler recently ruled that a FOIA requester could not use the FOIA to “gain access to the private email of a government official.” The case concerns the Competitive Enterprise Institute’s request for Office of Science and Technology Policy Director John Holdren’s emails. Kessler indicated she made the ruling in part “because Holdren issued a memo to his agency in 2010 that required that work-related emails exchanged on private accounts be ‘promptly copied’ to the agency.”
CIA director John Brennan announced the agency will undergo an extensive restructuring intended to eliminate “seams” in coverage. “The overhaul is designed to foster deeper collaboration and an intensified focus on a range of security issues and threats, replacing long-standing divisions that cover the Middle East, Africa and other regions with hybrid ‘mission centers’ modeled on the CIA’s Counterterrorism Center.”
The CIA began helping the U.S. Marshals, a Department of Justice (DOJ) component, build the technology the Marshals use for their “stingrays” – small planes “mounted with controversial cell-phone tracking systems” – over a decade ago. The Wall Street Journal revealed last year that the Marshals were collecting “large amounts of data from Americans’ cell phones through devices mounted on airplanes in an effort to locate fugitives” as part of a program that is run out of five unidentified large metropolitan areas. Both the CIA and the Justice Department have denied that the CIA, which is largely barred from conducting domestic operations, violated any rules helping the Marshals build its surveillance capabilities.
The Intercept recently published an in-depth analysis, based on documents provided by former National Security Agency (NSA) contractor Edward Snowden, of the CIA’s multi-year campaign to degrade Apple’s encryption for its iPhones and iPads. The Intercept reported hacking strategies were discussed at a secret annual CIA event called the Trusted Computing Base Jamboree, and focused on “targeting essential security keys used to encrypt data stored on Apple’s devices” used internationally by hundreds of millions of Apple customers. The revelations come shortly after Kaspersky Lab, a Russian cybersecurity firm, reported details of a sophisticated hacking group with intricate ties to the NSA that found ways to permanently embed surveillance tools that are so sophisticated they infect a computer’s “firmware” (the embedded software that prepares a computer’s hardware before the operating system starts).
Wikipedia and eight other groups filed a lawsuit this week (Wikimedia Foundation, et al, v. National Security Agency, et al, U.S. District Court for the District of Maryland, No. 15-662) challenging the NSA’s dragnet surveillance practices. The suit argues that the NSA’s practices violate both the First and Fourth Amendments, and “‘reduces the likelihood’ that journalists, foreign government officials, victims of human rights abuses and other individuals will share sensitive information.”
A recent Defense One editorial argued that whistleblower protection rules serve “more as a trap for would-be whistleblowers rather than a shield against retaliation.” The editorial was bolstered by a recent Government Accountability Office (GAO) report that examined “five dozen FBI whistleblower claims, and found only three that resulted in some form of corrective action.” The GAO found that DOJ regulations only protect “disclosures made to a handful of high-ranking officials and not those made to direct supervisors in the employees’ chain-of-command,” and as a result the DOJ ignores “a significant portion” of whistleblower claims.
A leak investigation involving former vice chairman of the Joint Chiefs of Staff, Marine Gen. James E. “Hoss” Cartwright, has been stalled by concerns it could force confirmation of joint U.S.-Israeli efforts to sabotage Iranian nuclear efforts. Cartwright is accused of leaking information regarding “a highly classified operation to hobble Iran’s nuclear enrichment capability through cyber-sabotage” to a New York Times reporter. The information, including the project’s code name – Olympic Games – was included in several of Times’ reporter David E. Sanger’s June 2012 publications, and corroborated earlier reports that the Stuxnet virus, which attacked Iranian nuclear centrifuges, was the result of U.S.-Israeli collaboration.
The news of the stalled investigation comes shortly after the announcement that former CIA director and retired four star general David Petraeus reached a plea deal with the DOJ after admitting to sharing classified information with Paula Broadwell and lying to the FBI about it. Under the plea deal Petraeus will plead guilty to one misdemeanor and serve no jail time, underscoring the double-standard of high ranking officials receiving little-to-no punishment for security breaches, while lower ranking officers are regularly threatened with jail time and heavy fines.
Analysis of the State Department Emails in Hillary Clinton’s Possession; and Much More: FRINFORMSUM 3/5/2015
By Lauren Harper and Nate Jones
The National Security Archive and other groups recently proposed an amendment to the House FOIA Reform bill that would allow all FOIA processors access to all electronic records systems for the processing of FOIA requests. This fix would have gone a long way in allowing State Department FOIA processors and FOIA requesters access to former secretary of state Hillary Clinton’s emails.
As all document hounds know, The New York Times has reported that Hillary Clinton solely used her personal email during her tenure as Secretary of State and did not routinely place the emails on State Department servers. This made it harder –if not impossible– for FOIA requesters and others to obtain official records, especially those not exchanged with government employees. (In another record keeping and opsec breach, the Associated Press has reported that Clinton owned the computer server for the emails, demonstrating “significant control over limiting access to her message archives.”)
The proposed change to USC 552(a)(3)(C) to allow FOIA processors access to all electronic records systems would read as follows:
(C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency’s automated information system. The FOIA Officer of the agency including the FOIA Officer’s designees, shall be provided access to search for and retrieve any records created and/or stored in electronic form or format for the processing of FOIA requests. An agency may not limit the scope of a search to systems searchable by the FOIA Officer without an independent substantive reason for the limitation. (emphasis added)
After the revelations of Clinton’s improper email record keeping emerged, some have begun to argue that regulations requiring federal officials use a government email address, or at the very least routinely store emails from personal accounts concerning government work with the State Department, were not in effect while she was using her personal email address to conduct government business.
However, an examination shows that there was a law on the books at the time (the Federal Records Act), federal regulations on the books at the time (36 CFR 1263.22), and NARA guidance which the State Department received (NARA Bulletin 2011-03) that should have prevented Clinton’s actions.
First, it’s important to note that NARA guidance confirms that email messages constituted federal records at the time Clinton used her personal email while conducting official business. The guidance (on the books at the time) stated “E-mail messages are records when their content (including attachments) meets the definition of a record under the Federal Records Act. See also 36 CFR 1236, and specifically 36 CFR 1236.22, which provides additional requirements for electronic mail.”
Second, the Federal Records Act [on the books since 1950], mandates that the head of each federal agency shall provide for “(1) effective controls over the creation and over the maintenance and use of records in the conduct of current business; (2) cooperation with the Administrator of General Services and the Archivist in applying standards, procedures, and techniques designed to improve the management of records, promote the maintenance and security of records deemed appropriate for preservation, and facilitate the segregation and disposal of records of temporary value.”
The Secretary of State was responsible for all of the Department’s records. Yet she failed to preserve even her own.
Finally, the Federal Records Act also codifies that “The head of each Federal agency shall notify the Archivist of any actual, impending, or threatened unlawful removal, defacing, alteration, or destruction of records in the custody of the agency of which he is the head that shall come to his attention, and with the assistance of the Archivist shall initiate action through the Attorney General for the recovery of records he knows or has reason to believe have been unlawfully removed from his agency, or from another Federal agency whose records have been transferred to his legal custody. In any case in which the head of the agency does not initiate an action for such recovery or other redress within a reasonable period of time after being notified of any such unlawful action, the Archivist shall request the Attorney General to initiate such an action, and shall notify the Congress when such a request has been made.”
The Secretary of State was charged to be the watchdog of our history; she was not. Hundreds of others at the State Department including the IT Department, its FOIA shop, and career civil servants had to have seen and known that the leader of their agency was improperly using a personal email address and –as far as the evidence has borne out– did nothing. They should have alerted the Archivist of the United States, their Inspector General, blown the whistle to congress, or leaked the misconduct to the press.
Another problem that the Clinton email scandal illuminates is that the US National Archives and Records Administration is loath to use its designated authority to ask the Department of Justice to prosecute government officials who unlawfully destroy official records. Such contenders for punishment should have included Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program that ordered the destruction of key videos documenting it in 2005, claiming that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain” [UPDATE: NARA did initiate an inquiry into Rodriguez’s actions, but he has received no punishment]; Admiral William McRaven, who ordered the immediate destruction of any emails about Operation Neptune Spear, including any photos of the death of Osama bin Laden (“destroy them immediately”), telling subordinates that any photos should have already been turned over to the CIA –presumably so they could be placed in operational files out of reach of the FOIA; Gina McCarthy, the EPA official who deleted thousands of text messages from her official agency cell phone; Lois Lerner, an IRS official whose emails regarding Obama’s political opponents “went missing or became destroyed;” former Secretary of State Colin Powell, who has to date also failed to place his emails concerning official business on department servers; and even Henry Kissinger, who fought to prevent the release of over 16,000 transcriptions of telephone conversations (telcons) as Secretary of State and National Security Advisor.
(Ironically, yesterday the NS Archive filed a lawsuit against the Department of State to force the release of the 700 telcons the State Department has still refused to release; the State Department has been “processing” our appeal since 2007. See our #tbt pick below for more.)
In fact, the last time NARA initiated the prosecution of a federal employee was Sandy Berger, who served as Bill Clinton’s National Security Advisor and was charged with a misdemeanor for illegally removing classified documents from the National Archives. His theft of classified documents from NARA’s shelves spurred effective reforms for the security of physical records. Hopefully Hillary Clinton’s use of personal email will spur a similar reform for the storage and security of digital records.
These reforms must remedy the scary fact that only one per cent of government email addresses are saved digitally by the “Capstone” program. The US National Archives currently trusts agencies to somehow determine and preserve the rest of their emails “deemed appropriate for preservation”on their own, often by employing –you’re hearing this correctly– a “print and file” physical archiving process for digital records.
A sad silver lining is that although Clinton improperly appropriated public records as her own, they have likely been preserved more completely than those of her State Department contemporaries.
As we go to press, Secretary Clinton has announced in a tweet that, “I want the public to see my email. I asked State to release them. They said they will review them for release as soon as possible.” While this is likely the best step forward both for Clinton, historians, and open government advocates, a couple of points bear watching.
First, there is a large difference between “releasing records” and “reviewing records for release.” As any FOIA requester knows “reviewing records for release” can take decades. (The NS Archive used FOIA to request former Secretary of Defense Donald Rumsfeld’s “snowflakes” be “reviewed for release” in 2007, and have not yet received a single record.)
Second, for Archival provenance purposes, Clinton would be wise to provide her entire tranche of emails (including those deemed personal) to the Department of State. NARA and State officials should determine which records can be withheld under privacy exemptions, not Clinton staffers.
Finally, while the full release of Clinton’s work emails is likely the correct move at this point, I predict it will cause extremely large delays to the many FOIA and declassification requests already backlogged at State. The fact of the matter is reviewers who were previously processing FOIAs and MDRs will now likely shift all of their person-hours to processing Clinton’s emails for release. (If I’m wrong on this I welcome correction from either DOS or NARA.)
FRINFORMSUM (FReedom of INFORMation SUMmary) continues:
In some good news for the Department of State, its Office of the Historian recently announced the publication of twenty digital Foreign Relations of the United States (FRUS) volumes. The volumes span 1948-1951 and “provide great insight into the construction of the national security state and how the United States responded to the rapid decolonization spreading through the Third World.” In 2009 the Office of the Historian announced its intention of publishing the entire FRUS catalogue, which dates to 1861 and contains over 500 volumes, digitally, and this most recent digital publication brings the total number of volumes published digitally to “nearly” 250.
Former CIA director and retired four star general David Petraeus has reached a plea deal with the Department of Justice after admitting to sharing classified information with mistress and biographer Paula Broadwell and lying to the FBI regarding the unauthorized disclosures. The investigation found Petraeus – who previously applauded former CIA officer John Kiriakou’s conviction for revealing the identity of a covert operative to a reporter – allowed Broadwell to read his “black books” – notebooks filled with classified notes “about official meetings, war strategy, intelligence capabilities and the names of covert officers.” Petraeus will plead “guilty to one count of unauthorized removal and retention of classified material, a misdemeanor,” and prosecutors have indicated they will request a two-year probation and a $40,000 fine in lieu of a possible prison sentence – unlike Kiriakou who was only was recently released from prison, or Jeffrey Sterling, another former CIA officer currently facing the possibility of a “lengthy prison term for talking about classified information with” New York Times reporter James Risen, just to name a few.
U.S. District Judge Royce Lamberth railed against the Environmental Protection Agency’s (EPA) FOIA performance earlier this week in connection with a FOIA lawsuit seeking “documents covering communications with groups and individuals concerning potential EPA regulations.” While Lamberth technically ruled against the FOIA requester, the judge berated the EPA, noting “While the existing record in this case does not support a holding that the EPA acted in bad faith, it is obvious to this court that EPA has, once again, fumbled its way through its unambiguous FOIA obligations.”
Documents taken from the Abbottabad compound during the May 2011 raid to capture Osama bin Laden and recently introduced in a terrorism trial in New York are providing new information on Al Qaeda’s ties to Iran and strength in Afghanistan, among other revelations. The documents portray bin Laden as continuing to be heavily involved in Al Qaeda (AQ), rather than living in “comfortable retirement” as some have suggested. The documents detail Al Qaeda’s sometimes contentious relationship with Iran – including AQ’s kidnapping of an Iranian diplomat to spur Iran’s release of members of bin Laden’s family –, and indicate AQ had a “more significant” presence in Afghanistan in 2010 than the US realized.
The Federal Times reported this week that the CIA will launch its own private app store next month. The marketplace will begin with “a few hundred applications” designed with the Intelligence Community’s needs in mind, and will allow employees to “sample an application to see if it meets their needs and buy subscription services to third-party apps or download open source or intra-agency offerings directly.”
The Foreign Intelligence Surveillance Court has declassified a series of rulings in response to a FOIA lawsuit brought by the New York Times and the Electronic Frontier Foundation. The documents concern the Court’s 2002 ruling on “raw data” sharing, which eliminated “a rule that required the Federal Bureau of Investigation to remove names and irrelevant information about innocent Americans picked up as part of wiretapping under the Foreign Intelligence Surveillance Act before sharing information with the National Security Agency and the Central Intelligence Agency — and, starting in 2012, the National Counterterrorism Center.”
Today’s #tbt document pick is chosen with the Archive’s recent FOIA lawsuit against the State Department for the release of the last 700 transcripts of former Secretary of State Henry Kissinger’s telephone calls (telcons), which have been withheld for 8 years – many under the b(5) “withhold it because you want to” exemption –, in mind. Today’s #tbt pick is a June 1, 1970, telcon between Kissinger and White House Press Secretary Ron Ziegler, in which Ziegler teases Kissinger about his dates with Hollywood actresses Jill St. John and Faye Dunaway.
Sunshine Week, the national celebration of open government and freedom of information, kicks into full gear Monday, March 16th. Every year, the news media, nonprofits, libraries, schools, and the government debate the best ways to strengthen the public’s right to know and how to achieve a more democratic, transparent government. This Sunshine Week Nate Jones, the Director of the FOIA Program at The National Security Archive, will present a free, open to the public, 2-hour workshop for journalists, historians, and researchers on how to file effective federal FOIA requests. Other suggested activities taking place in the Washington, D.C. area in the coming weeks include:
Friday, March 13, 2015
- FOI Day
The Newseum Institute, OpentheGovernment.org, American Library Association
The Newseum Institute, OpentheGovernment.org and the American Library Association, in partnership with the Sunshine in Government Initiative, American Society of News Editors and the Reporters Committee for Freedom of the Press, will host the annual FOI Day at the Newseum in Washington, D.C. The morning event will include a look at 10 years of Sunshine Week and the importance of government transparency. This year’s program features:
- A discussion of “Open Government: Successes, Challenges, Prospects” presented by OpenTheGovernment.org.
- A discussion of the first ten years of the “Sunshine Week” national open records initiative, presented by the Reporters Committee for Freedom of the Press and the American Society of News Editors, including a preview of a major reporting package from The Associated Press, McClatchy and Gannett/USA Today on a decade of open government activity.
- Remarks by Miriam Nisbet, former director of Office of Government Information Services, National Archives.
- Announcement of this year’s recipient of the James Madison Award, presented annually by the American Library Assocation to individuals or groups that have championed, protected and promoted public access to government information and the public’s right to know.
- Additional speakers may be announced later.
Attendees should use the C Street entrance to the Newseum, which will open at 7:45 a.m. for this program only. Admission to the FOI Day program does not include admission to the Newseum. Follow #FOIDay15 on Twitter.
Monday, March 16, 2015
Department of Justice Sunshine Week 2015 Celebration
U.S. Department of Justice
The theme of this year’s Department of Justice Sunshine Week event is a celebration of government FOIA professionals. The DOJ is accepting nominations in a variety of categories, and the winners will be recognized for their FOIA service with awards. The event in Washington will be held from 10 a.m. to noon and is open to agency personnel and the public. More information, registration and award nomination instructions are available on the DOJ website.
National Press Club
To mark Sunshine Week, the National Press Club and its Press Freedom Committee will host a workshop for journalists to teach them techniques to help get better results from Freedom of Information Act requests. FOIA Resource Center founder Lisette Garcia will lead the class that costs $5 for NPC members and $10 for non-members. Details and registration information are on the National Press Club website.
- Crafting your FOIA request: How to get the most useful information in the shortest time
Administration for Children & Families, U.S. Department of Health and Human Services
The HHS’ Administration for Children & Families will host a Sunshine Week workshop on crafting effective Freedom of Information Act requests. More information about the event, slated for 12-1:30 p.m., will be posted on the ACF website.
Wednesday, March 18, 2015
Era of Transparency: Freedom of Information Act (FOIA), Privacy Act, and Open Government
The Bureau of the Census (U.S. Census Bureau)
The U.S. Census Bureau is hosting a Sunshine Week discussion on the importance of open government. Topics are slated to include proactive disclosures, the Privacy Act and data accessibility. The event will take place from 9 a.m. to noon in Suitland, Md. For more information, see the event notice online.
Thursday, March 19, 2015
Let the Sun Shine: FOIA requests for journalists and researchers
National Security Archive and the Estelle and Melvin Gelman Library, The George Washington University, Washington
Nate Jones, director of the National Security Archive’s FOIA Project, will give a 2-hour workshop on how to file effective federal Freedom of Information Act requests. The event, which begins at 4 p.m. at GWU’s Gelman Library is free and open to the public. More information can be found on the library’s website.
Sunshine Week Happy Hour and FOILIES Awards
Sunlight Foundation, Electronic Frontier Foundation, MuckRock
The Sunlight Foundation is teaming up with EFF and MuckRock to expand its annual Sunshine Week Happy Hour in D.C. to include a celebration of the FOILIES Awards, presented for the most “extraordinary and egregious” FOIA request responses, as nominated by the public. The event will be held from 5-7 p.m. at Lost & Found in Washington. More details and nomination information can be found on the Sunlight Foundation website.
A full list of nationwide Sunshine Week activities can be found here, and you can follow Sunshine Week on Twitter @SunshineWeek.
This morning the House Committee on Oversight and Government Reform’s Subcommittee on Government Operations had its first hearing of the session(!) on “Ensuring Government Transparency Through FOIA Reform.” Witnesses included Miriam Nisbet, former director of the Office of Government Information Services (OGIS), Rick Blum, Director of the Sunshine in Government Initiative, and Fred Sadler, a former FOIA officer for the Food and Drug Administration. Earlier this month, Archive FOIA Project Director Nate Jones outlined why the simultaneous introduction of popular, bipartisan Freedom of Information Act bills in both the House (H.R. 653) and the Senate (S 337) is a good sign for those who want the release of more government documents, more quickly, to more people. Many of his arguments were reiterated by Mr. Blum and Ms. Nisbet throughout the hearing. Mr. Sadler, on the other hand, testified that, “Clearly, the statute is functioning well, in the main” and argued against most of the House bill’s FOIA reforms.1 Below are the National Security Archive’s responses to several of his arguments.
Early in his testimony while discussing possible improvements to the referral process, Mr. Sadler argued that “complaints need to be tempered,” as referrals are a critical part of the FOIA process.
That referrals are a reality in the FOIA process is not up for debate, nor is the fact that referrals are a major factor contributing to FOIA delays. The Society for Historians of American Foreign Relations (SHAFR) argues in its 2014 FOIA Implementation Report that “explicit and specific rules about what can be ‘equity’ information, strictures as to how long a third party agency can hang onto its interests, and guidelines as to whether particular agency interests can impede the general move to declassification” would help fix the referral issue, thereby further improving FOIA wait times and backlogs. The National Security Archive has experienced decades-long FOIA delays due to referrals. One 1983 document was referred to 14 different agencies for a crack at censorship.
Mr. Sadler also expressed concern that codifying a “foreseeable harm” test (the current policy advocated by both the President and the Attorney General) would lead to increased FOIA litigation.
The proposed legislation strengthens the FOIA Ombuds, OGIS, and fixes FOIA loopholes, which will both help to cut down on the fee disputes, lack of communication, and improper withholdings that often lead to litigation. At any rate, it was a bit strange to hear a recently retired FOIA director claim that the Presidential instructions his office was supposed to have been following should not be codified.
Mr. Sadler’s testimony also raised the specter of 508 compliance, arguing that making documents 508 compliant is too costly, too burdensome, and not presently feasible.
According to many inside the government, one of the primary challenges to improving proactive disclosures is ensuring that the posted documents are “508 compliant.” Section 508 has required agencies to ensure that persons with disabilities have comparable access to data as persons without disabilities and that federal employees with disabilities can access records with the same ease as their non-disabled counterparts since 1998. Despite his protestations, Sadler essentially admitted this at 1:16 in the video. He states that his largest issue is with documents “submitted” to the agency in non-508-compliant format. This is a very small subset of documents, and no reason to torpedo the idea of proactively posting FOIA releases.
Despite arguments that making documents 508 compliant is too burdensome, all documents posted to FOIAonline (by agencies such as the Environmental Protection Administration, the National Archives and Records Administration, the US Navy, and others) are 508 compliant, as are the documents posted by the Department of State. A 2010 Department of Homeland Security guide also shows that making documents 508 compliant is not taxing, and even older paper records that are scanned to be processed through FOIA can be made 508 compliant with just a few clicks in Adobe Acrobat. Even if its prohibitive to make older documents that were scanned from paper 508 compliant, there should be, at the very least, no such excuse for digital records.
Sadler and others have argued that posting FOIA releases online is not cost effective. In fact the National Security Archive believes the opposite is true. It’s not cost effective to spend tens (or hundreds) of person hours to search for, review, and redact FOIA requests only to mail them to the requester and have them slip them into their desk drawer and forget about them. That, is a waste of resources. The released documents should be posted online for any interested party to utilize. This will only become easier as FOIA processing systems evolve to automatically post the documents they track.
Mr. Sadler stated that requiring all agencies to update their FOIA regulations within 180 days of the bills’ passage is inefficient, and countered that allowing the Department of Justice’s Office of Information Policy (OIP) to craft a single, government-wide set of FOIA regulations would be preferable.
Currently, over half of federal agencies have not updated their regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms.
Additionally, having OIP crafting government-wide regulations would bear watching; OIP proposed FOIA regulations in 2011 that would have — among many other FOIA setbacks — allowed the Department to lie to FOIA requesters, eliminated online-only publications from receiving media fee status, and made it easier to destroy records.
Mr. Sadler also noted that the categories of records that agencies are required to proactively post online are not clear enough, though recent government efforts to post various databases online have been successful.
The E-FOIA Amendments of 1996 explicitly lists several types of records agencies must publish proactively in their electronic reading rooms – including agency FOIA regulations, annual FOIA reports, agency opinions and determinations, policy statements and interpretations, agency FOIA manuals, records “likely to become the subject of subsequent requests” and “frequently requested records,” which OIP defines as records that have been requested three or more times. It is understandably time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breech of the, now nearly twenty-year-old, law. Proactively posting FOIA releases after their first release, however, would solve this problem and undoubtedly help agencies cut down on their FOIA backlogs. There are several agencies that do this to different degrees; the Environmental Protection Agency and several other agencies post their FOIA releases to FOIAonline, and the Department of State posts documents released in response to FOIA requests quarterly.
Finally, Mr. Sadler cryptically warned the Committee against “making determinations based” on media reports on the increase of “certain exemptions” – likely referring to FOIA’s exemption b(5)
Perhaps Mr. Sadler remembers that it was the White House that initially pointed to the falling use of the b(5) exemption as proof that the administration really was working to “figure out where we can disclose information” and cited the b(5) dip as a FOIA success stemming from President Obama’s and Attorney General Holder’s instructions for agencies to operate with “a presumption in favor of disclosure” with respect to FOIA.
Those times have changed. Widely cited statistics compiled by the Associated Press show b(5) use is at an all time high. It was invoked 81,752 times in 2013 (applied to 12 percent of all of 2013’s processed requests) to deny information. The concern surrounding the increasing use of b(5) – that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public – does not arise solely from the number of times it is invoked, however, but also from mounting evidence that it is increasingly being used as a catch-all exemption.
While this exemption is often used correctly to preserve candid communications between government employees, its broad wording and ease of applicability has led to extreme (even offensive) overuse, including censoring information on DOJ Nazi hunting (and protecting), a CIA history of the Bay of Pigs invasion, documents on US policy during the Rwandan genocide, and many more. President Obama’s adviser John Podesta has even called it the “withhold it because you want to” exemption.
The National Security Archive is thrilled the Committee is eager to tackle FOIA reform early on in this legislative session. This endeavor was helped by the excellent FOIA questions asked by Chairman Mark Meadows (R-Nc) , Ranking Member Gerry Connolly (D-Va), and Representatives Mick Mulvaney (R-Sc), Stephen Lynch (D-Ma), and Thomas Massie (R-Ky). Additional thanks is due to Chairman Darrell Issa (R-Ca), Ranking Member Elijah Cummings (D-Md) and Mike Quigley (D-Il), who introduced this bill. We are confident the FOIA Oversight and Implementation Act is strong enough to overcome its detractors.
1. Mr. Sadler also added a bit of levity to the hearings when he described how the text of a document about energy bar ingredients that initially included the words “allergy inducing” was altered during an American with Disabilities Act compliance measure to errantly read “orgy inducing.”
After a chuckle, further inspection of this anecdote is bizarre and troubling. Mr. Sadler himself testified that the document in question was a Microsoft Word document which is already digitally readable (ADA and 508 compliant). If that was the case, it’s strange and inefficient that the FDA chose for some reason to re-OCR a file already 508 compliant and make it incorrect.
At any rate, this tale of an “orgy inducing” energy bar does little to negate the need for robust proactive posting of documents released under FOIA.↩
By Toby McIntosh and Lauren Harper
This article has been crossposted from FreedomInfo.org.
Bills to restrict or prevent the public disclosure of videos taken by police officers wearing cameras are sparking debate in state legislatures around the United States.
Anti-disclosure bills have been offered in half a dozen states, usually by legislators with law enforcement backgrounds.
“Video recordings should not be subject to open records requests,” testified Richard W. Van Houten, Jr., President of the Fort Worth Police Officers Alliance, at a listening session held Jan. 31 by President Obama’s task Force on 21st Century Policing.
The American Civil Liberties Union is weighing in, too, advocating that only the most significant videos be saved for possible release.
Freedom of information advocates dislike this proposal, and counter that existing public records laws already protect against disclosures that would breach personal privacy or interfere with law enforcement.
If the footage isn’t available, “body cam” supporters say, the promise of having silent watchdogs over police-citizen interactions will go unfulfilled.
After the shooting death of 18-year-old Michael Brown last year in Ferguson, Mo., President Obama asked Congress to buy 50,000 police body cameras – for $75 million – to promote accountability in police forces nationwide.
Some body camera pilot programs have shown a decrease in both complaints against police officers and police use of force (88 percent and 60 percent respectively in Rialto, Calif.) Many agree that in theory body cameras are a good idea. In practice, they pose real-world challenges.
Disclosure a Hot Topic
How much body cam footage would be disclosed, and what would be kept confidential, is surfacing as a contentious and complicated issue.
It’s largely settled that state FOI laws, which vary in their details, apply to all public records, including body cam videos, subject to exemptions.
The laws include exemptions to protect personal privacy and preserve the integrity of investigations and prosecutions.
Some guidance as to how they would apply to body cam footage can be derived from the treatment of 911 audio recordings and dashboard camera footage. But the application of state laws to body cam footage is undeveloped and unlitigated.
Although a vehement backlash against disclosure has emerged, it is premature to predict whether restrictive bills will pass, FreedomInfo.org, was told by activists on both sides.
Rule for Body Cams Use Will Affect Disclosure
Many policy choices to be made about what will be filmed, which in turn will affect what might be disclosed.
“This a very tough issue and is one that will become more of an issue,” said Lindsey Miller, an author of a comprehensive report on body camera policies by the Police Executive Research Forum (PERF).
The report observes, “A police department that deploys body-worn cameras is making a statement that it believes the actions of its officers are a matter of public record….” PERF is a research and policy organization in Washington whose members are the heads of police departments across the country. The September 2014 report was supported by the U.S. Department of Justice’s Office of Community Oriented Policing Services.
In hundreds of local jurisdictions, decisions are being made about the use of body cams, often with questions of privacy in mind.
Among the issues are:
- whether cameras should be turned off before an officer enters a private residence without a warrant,
- whether video-taping should be continuous,
- when should cameras be turned off,
- whether subjects need to be informed they are being taped,
- how to prevent manipulation of the footage and
- how long to retain the videos.
Once these decisions are made and cameras are rolling the policies on disclosing the videos are governed by state freedom of information laws.
“Most of these laws were written long before law enforcement agencies began deploying body-worn cameras, so the laws do not necessarily account for all of the considerations that must be made when police departments undertake a body-worn camera program,” according to the PERF report.
In some states, notably New York and North Carolina, provisions designed to protect police officers are likely to prevent the release of body cam videos.
In Los Angeles, the police chief says he won’t release video footage, setting up a likely confrontation with disclosure advocates.
OGIS Director Vacancy Announcement Finally Posted, the Difference Between Fee Categories and Waivers, and Much More: FRINFORMSUM 2/26/2015
The National Security Archive is pleased that the vacancy announcement for the director position at the Office of Government Information Services has finally been posted. The position, which heads the small federal office responsible for providing FOIA mediation and compliance services for the entire federal government, had been left unfilled and without a call for applicants since Miriam Nisbet retired at the end of November. Archive FOIA Project Director Nate Jones noted his “extreme concern” that the FOIA watchdog remained director-less at the most recent FOIA Advisory Committee meeting. The announcement is open until March 12, 2015, after which point OGIS will hopefully be able to return to carrying out its pivotal duties at full capacity.
A recent posting by Amy Bennett on OGIS’ blog, The FOIA Ombudsman, provides a great refresher on the difference between FOIA fee categories and fee waivers. The article contains a useful chart that breaks down the different requester categories and their associated fees. The key takeaway from this posting is that requesters should make every effort to obtain a “favorable fee category” – like news media or educational – rather than seek a fee waiver, which demands “a much higher threshold for consideration than a fee category” (in FY2013 fee waivers were granted to less than one per cent of FOIA requesters!). The OGIS posting misses, however, that, pursuant to Section 6(b) of the OPEN Government Act of 2007, agencies in most cases are not allowed to charge non-commercial FOIA requesters “search fees, or, if applicable, duplication fees” if the agency misses the FOIA’s statutory twenty-day response deadline.1
McClatchy News obtained a Pentagon Inspector General (IG) report through the FOIA that “underscores the problem that intelligence and defense workers face in bringing malfeasance to the surface.” The Pentagon IG investigated former National Security Agency (NSA) employee and whistleblower Thomas Drake’s claims of agency retaliation in the wake of his leak of classified information on surveillance programs. Drake was charged in 2010 under the Espionage Act with 10 felony counts of unlawful retention of classified information, only to have all charges dropped a year later, but not until his career had been torpedoed. Drake claims he was subjected to a decade’s worth of agency retaliation, but the IG report inexplicably only investigated two, “before finding no evidence of retaliation.”
A FOIA request filed by Greenpeace has won the release of documents showing Harvard-Smithsonian Center for Astrophysics scientist Wei-Hock Soon, one of the most frequently cited scientists claiming that greenhouse gas emissions do not contribute to global warming, has received $1.2 million in funding from the fossil fuel industry over the last decade. In that time Soon has regularly avoided citing the conflict of interest in his scientific papers, appearing to violate “ethical guidelines of the journals that published his work” in at least eight cases. The documents show Soon described many of these papers, as well as his Congressional testimony, as “deliverables” when communicating with his corporate sponsors.
Several weeks ago Congressman Jason Chaffetz “reviewed heavily redacted emails and other documents VICE News” obtained in response to a FOIA request, ultimately calling a House Committee on Oversight and Government Reform hearing over what he found. The documents show administration officials communicating with Federal Communications Commission (FCC) chair Tom Wheeler about President Obama’s net neutrality policy.
In responding to VICE’s FOIA request, the FCC, in what the agency said was strict adherence to DOJ guidelines mandating agencies don’t unilaterally declassify documents concerning other agencies, consulted with the White House about whether or not the emails between the administration and the agency should be released. Archive FOIA Project Director Nate Jones notes the FCC’s understanding of the law is a “bit off,” as the White House is not a federal agency, and that the FCC was granting the White House “a political privilege” by giving them the opportunity to review the emails. Jones further notes, “FCC FOIA officers are well trained as to what information may be withheld from requests made under the Freedom of Information Act,” going on to say, “Offering White House political hands (who are not trained in FOIA) another, un-required crack at censoring a FOIA request is bad FOIA policy and a poor demonstration of open government.”
The FBI is claiming, with Department of Justice (DOJ) support, that it cannot find the drone privacy impact assessments that it fully redacted in response to a FOIA request six months ago under the “withhold it because you want to” b(5) exemption. MuckRock’s Shawn Musgrave notes the organization initially filed the FOIA for the privacy assessments because “Federal agencies must conduct a privacy impact assessment prior to deploying any technology that collects personal information, courtesy of the E-Government Act of 2002.” Since the FBI has been flying drones since at least 2005, the privacy assessments should address “what information is being collected and why, how it will be used, who will be able to access it, and other basic details.” When the assessments were withheld last year pursuant to b(5), MuckRock filed further FOIA requests for the assessments and documents concerning why they weren’t made public per proper procedure, only to be informed that “the Justice Department confirmed that neither the FBI nor OPCL had been able to find anything despite ‘an adequate, reasonable search for such records.’” After the story of the now-missing privacy assessments broke, the DOJ, in a remarkable instance of “who’s on first,” told MuckRock that “The questions you raised are best addressed through FOIA, and it is my understanding that you sought similar information already through our FOIA office.”
The Privacy and Civil Liberties Oversight Board (PCLOB) recently published a chart “on how U.S. intelligence agencies use a Reagan-era executive order  to collect Americans’ private information,” showing most agency guidelines are woefully outdated. “Most agencies have not revisited their handling of data collection since the early 2000s, and in some cases not since the 1980s.” The chart shows that while the DOD and FBI reevaluated their internal guidelines in 2008, others haven’t in decades, and “the Homeland Security Department, Treasury Department and United States Coast Guard don’t even have 12333-specific rules.”
A robbery trial in Florida, in which the “defense team detected investigators’ use of a secret surveillance tool” resulting in a plea bargain, is drawing attention to police’s increasing reliance on sophisticated surveillance tools. The judge ordered the government to disclose the device – a cell tower simulator designed to capture cell phone signals to pinpoint a suspect’s location – after it was discovered; the state chose to offer the plea bargain instead. According to the Washington Post, the Florida case “is emblematic of the growing, but hidden, use by local law enforcement of a sophisticated surveillance technology borrowed from the national security world. It shows how a gag order imposed by the FBI — on grounds that discussing the device’s operation would compromise its effectiveness — has left judges, the public and criminal defendants in the dark on how the tool works.”
Documents posted for the first time in a collaboration between the National Security Archive and VICE News provide insight into the U.S. government’s relationship with arms dealer Sarkis Soghanalian, whose larger-than-life deals were so well known that he was inspiration for Nicholas Cage’s character Yuri Orlov in the 2005 film, Lord of War. Check out our top 10 “Merchant of Death” documents here.
This week’s #tbt document picks are chosen with the recent death of celebrated Navy scientist John P. Craven in mind. Craven played an important role in the development of Polaris, the first ICBM to be launched from a submarine, and was allegedly involved in the Hughes Glomar Explorer’s efforts to salvage a Soviet submarine that sunk off the coast of Hawaii. Today’s #tbt picks are a series of six documents from the Digital National Security Archive’s US Nuclear History: Nuclear Arms and Politics in the Missile Age, 1955–1968 collection, and are listed below with a brief description:
- Proceedings of the Special Projects Office- Task II–Monitor and Sponsor the Fleet Ballistic Missile Development Program- 36th Meeting–21, 22 March 1963.
Thirty-sixth meeting discusses missile range/weight, reentry vehicle tests, stellar inertial guidance, submarine range and accuracy improvements needed to obtain hard target kill capacity.
- Proceedings of the Special Projects Office- Task II–Monitor and Sponsor the Fleet Ballistic Missile Development Program, 37th Meeting–23, 24 May 1963.
Reviews command communications, near-surface operation, and A-3 missile developments.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program, 42nd Meeting–26-27 March 1964.
Ignatius Galantin comments on missile flight tests, and John Craven reports on Polaris submarine tender operations; executive session included.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program, 43rd Meeting–27, 28 May 1964.
Forty-third meeting discusses advanced concepts for fleet ballistic missile including slow/quiet submarine, new penetration aids, multiple independently targetable reentry vehicles, stellar inertial guidance, and command, control, and communication improvements.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program. 45th Meeting–30 September 1964, 1 October 1964.
Reports on fleet ballistic missile problems and developments, including possibility of multiple independently targetable reentry vehicles for Poseidon.
- Proceedings of the Special Projects Office Steering Task Group- Task II–Monitor the Fleet Ballistic Missile Development Program, 46th Meeting–18, 19 November 1964.
Discussion includes review of A-3 missile development.
1.Pursuant to the 2007 OPEN Government Act, agencies cannot charge requesters search fees if the agency fails to meet the statutory deadlines established in Section 6. The amendment further directs that if an agency misses its deadline for requesters not charged search fees under the FOIA — including news media and educational requesters — by virtue of their fee category, the agency is then not allowed to charge duplication fees. ↩
Jack White’s Now Infamous Concert Rider Disclosed under Open Records Request – Not Leaked, CIA Needs 6 Years to Release Already Declassified Documents, and Much More: FRINFORMSUM 2/19/2015
Facebook recently promoted an article in its “trending” section concerning Jack White’s “leaked” tour demands, which included some odd guacamole requirements. News outlets like NPR jumped on the story, promoting the “leaked” angle. Unfortunately, few news organizations bothered to dig deeper; if they had, they would have found the tour demands were released in response to an open records request by the University of Oklahoma’s The Oklahoma Daily in an attempt to find out how much the school was paying for White’s performance, not leaked.
The CIA recently told a federal judge that it will need six years to release agency documents that are already declassified in response to a FOIA request from MuckRock. MuckRock requested the agency’s CREST database of 11.6 million declassified documents that are currently only available onsite at the National Archive’s College Park location in Maryland (about 250,000 pages are available on the CIA’s website), with the goal of placing the entire collection online. The CIA initially said it would take 28 years to release the set, but later announced it could release the documents in six years with only a “spot check” for classified information, again, even though the documents are already declassified. The agency also “insists” on conducting a manual review of the files to remove metadata, and burning all the records onto 1200 CDs even though the records would all fit on a single $60 external hard drive.
A series of documents posted by the National Security Archive in 2013 showing the National Security Agency (NSA) had “operations to disrupt, deny, degrade or destroy” computer information since 1997 (see our #tbt pick below for more) buoys Kaspersky Lab’s hints that the NSA is linked to the elite hacking group known as the Equation Group. Kaspersky Lab, a Russian cybersecurity firm, reported details of the sophisticated hacking group and its long ties to the NSA this week at a conference in Mexico. Kaspersky determined the group found ways to permanently embed surveillance tools on foreign computers and networks, and has tools that are so sophisticated they infect the “firmware” (the embedded software that prepares a computer’s hardware before the operating system starts) – a hack that is beyond the reach of security controls and antivirus protections. Kaspersky “researchers stopped short of saying Equation Group was the handiwork of the NSA— but they provided detailed evidence that strongly implicates the US spy agency.”
The New York Times recently reported that the CIA secretly purchased and destroyed Iraqi chemical weapons from 2005 through 2006 as part of Operation Avarice, which was run out of its station in Baghdad. The operation, which was deemed a nonproliferation success, led to the acquisition and destruction of “at least 400 Borak rockets, one of the internationally condemned chemical weapons that Saddam Hussein’s Baathist government manufactured in the 1980s but that were not accounted for by United Nations inspections mandated after the 1991 Persian Gulf war.”
The US will drastically expand the Department of State’s Center for Strategic Counterterrorism Communications to streamline the US’ anti-ISIS propaganda. The expanded Center will eventually combine the disparate counter-messaging offices at the Pentagon, the Department of Homeland Security, and throughout the Intelligence Community, into one messaging platform. Critics of the Center note its paltry budget – $5 million a year – and that it has existed too independent of other federal agencies working to counter violent extremists.
Nick Rasmussen, the director of the National Counterterrorism Center, suggested before the Senate Intelligence Committee last week that the US’ current offensive against ISIS is not covered by “a 2001 military force authorization, which the White House has touted as its authority for waging war against the Islamic terror group.” Rasmussen said that while the 2001 authorization covered action against Al Qaeda, he was unclear if it applied to current operations. “I would defer to my lawyer friends, but I believe not,” he said.
The Obama administration announced new rules this week that will allow the sale of armed drones to US allies. The rules, which remain classified, mandate the sales of such drones be made on a case-by-case basis, and that recipients agree to the US’s “proper use” principles – promising not to use the aircraft “to conduct unlawful surveillance or [for] unlawful force against their domestic populations.” The long-planned rules aren’t without their critics. In a 2012 letter Senator Dianne Feinstein (D-Calif.) criticized such sales, noting “Despite the best intentions, we will not be able to guarantee that purchasers of U.S. UAVs [drones] will be able to develop the same level of intelligence to discriminate between potential targets,” and the Council on Foreign Relations’ Micah Zenko said drones “lower the threshold for when countries use armed force, and when you have that lower threshold, it can change the calculus of countries.”
The FAA recently published its draft rules governing commercial drone usage. The rules will make it “relatively simple for real estate agents, aerial photographers, police departments, farmers and anyone else to fly small drones for work purposes.” Businesses cannot, however, fly drones at night and must maintain eye contact with them. Drone operators and manufacturers will not be required to certify the drones are safe to fly. The White House simultaneously issued a new Presidential directive that will require federal agencies “to publicly disclose where they fly drones in the United States and what they do with the torrents of data collected from aerial surveillance.”
In the first ever court ruling on the CIA’s extraordinary rendition program, the European Court of Human Rights ruled that Poland must compensate two suspects who were detained at a CIA secret prison hosted there from 2002 to 2003. It remains unclear if the money – $262,000 – will be transferred directly to the plaintiffs, who are both currently held at Guantanamo.
A bit of good proactive disclosure news from NASA: the federal agency has announced that it will begin requiring all the $3 billion research it funds to be “published under open access rules via its own PubMed Central platform.” The National Institute of Health also uses the PubMed platform to the same ends, in accordance with best practice open government principles.
Nominations for the FOILIES – a contest run by the Sunlight Foundation and the Electronic Frontier Foundation seeking “the most outrageous responses to Freedom of Information Act and state open records act requests” are due Friday, February 20th. The Archive will be racking its collective brain for outstanding FOIA responses, and we encourage others to as well! Submit your FOILIES for consideration to email@example.com with “FOILIES 2015 NOMINATION” in the subject line.
Today’s #tbt pick is chosen with the explosive Kaspersky report in mind, and is a Secret March 3, 1997, document by NSA official William B Black Jr., which notes the Secretary of Defense officially delegated authority to the NSA to develop Computer Network Attack (CNA) techniques. An August 14, 2006, Department of Defense directive defines CNAs as “operations to disrupt, deny, degrade or destroy information resident in computers and computer networks, or the computers and networks themselves.”