Rep. Chaffetz tells Fed FOIA Head Melanie Pustay that She Lives in “La-La-Land” if She Thinks FOIA is Working Properly, and Much More: FRINFORMSUM 6/4/2015
The House Committee on Government Oversight and Reform held a two-day hearing this week on “Ensuring Transparency through the Freedom of Information Act.” The hearing was chaired by Rep. Jason Chaffetz (R-Utah), who cited in his opening statements a 2011 response from Immigration and Customs Enforcement (ICE) to a National Security Archive request, in which ICE provided our office with 111 pages of previously available public information. Chaffetz called the hearing with the goal of better understanding why the FOIA process is frequently slow and opaque, and told the Department of Justice’s Office of Information Policy (OIP) Director Melanie Pustay that she must be living in “la-la-land” if she thought FOIA was being properly implemented.
The first day of the hearing included witness testimony from members of the press, including Vice News’ Jason Leopold and former CBS anchor Sharyl Attkisson, and representatives of the open government community, including the Archive’s FOIA Project Director Nate Jones and the Campaign for Accountability’s Anne Weismann.
Jones argued that while FOIA is not a broken system, it is also not one that is living up to its potential. He emphasized, however, that passing legislation that would address the root of many contentious fee issues, place limitations on the oft-abused Exemption Five, and strengthen the FOIA ombuds office OGIS, would go far in improving FOIA implementation. Jones also called for an independent, robust FOIA “beat cop” to ensure agency compliance – a job the DOJ is currently not performing. Jones’ full testimony is available here and deserves a read for a thorough understanding of the big picture problems — and solutions — with current FOIA administration.
It’s worth noting that ranking member Elijah Cummings (D-Md.) said during the second panel that, “we’re going to sit down and try to improve the bill that we have [HR 653] so that we can accomplish something. In other words, to do what the law was intended to do, that is the FOIA law. Give me the elements of what needs to be in that legislation.” Rep. Chaffetz also noted that he wanted to consider –even though the House Oversight Committee approved HR 653 in March and even though FOIA reform essentially received 510 yes votes and 0 no votes at the end of last year’s session– “limiting back the exemptions.” He went on to say, “how would we reconstitute those nine [exemptions], should they be three, should they be two, maybe it’s 18 and they just need to be much more specific. How would you take that section of FOIA and re-do it in such a way” that exemptions were not abused, and solicited comments in writing from the panelists that would allow the Committee “in a bipartisan way try to re-do that.”
Such an ambitious reform may make it less likely that FOIA reform will actually become law this session. It will be even more difficult to re-write the FOIA legislation to “reconstitute the exemptions” in the Senate given the current dynamic in that chamber. Since 2007, FOIA bills have passed out of House and Senate Committees four times without becoming law.
Other highlights from the hearing’s first day included Jason Leopold describing an unprecedented incident with the Pentagon’s Office of Net Assessment, in which it agreed to process his FOIA request on the condition that he never file a FOIA request with their office again, or have anyone else do so on his behalf. Leopold also noted, anecdotally, that fewer than 1% of his FOIA requests were answered within the statutory 20-business day timeline. Newsweek’s Leah Goodman drew attention to the problem of anti-FOIA bureaucrats and “securocrats” who, because they frequently outlast administrations, flout presidential directives and attorney general memorandums calling for increased transparency. New York Times’ assistant general counsel David McCraw said that oftentimes a presumption of fear trumps a presumption of openness. Rep. Stephen Lynch (D-Mass.) also took the opportunity to express his wish to see the entire 9/11 Commission Report declassified.
The second day of the hearing featured a panel of Chief FOIA Officers from across the government and OIP Director Melanie Pustay. The government representatives presented a “rosy” view of FOIA at their various departments despite the previous testimony revealing the exact opposite, prompting Rep. Chaffetz to tell Ms. Pustay, who again trotted out misleading statistics on the government-wide FOIA release rates and FOIA litigation results, that she lived in “la la land.” Rep. Cummings noted towards the end of the hearing that while it was designed to determine how to improve the FOIA and how Congress could help agencies, it was “kinda hard to do that when you think you’re almost perfect, though.” The hearing made clear, among other things, that for more realistic assessments and insights into the FOIA process, a strengthened OGIS is needed. And for a better FOIA experience? Agencies must find a way to search emails.
The USA Freedom Act was signed into law this week in a symbolic post-9/11 shift towards reining in the sprawling surveillance apparatus. While the government maintains “robust surveillance powers,” the law will: end (in six months) the National Security Agency’s (NSA) bulk collection of American phone records, instead storing them with private phone companies that the NSA will need to obtain a court order to retrieve; provide a public advocate that will be able to argue before the Foreign Intelligence Surveillance Court in some instances; and give private companies more leeway in publishing the government requests for user data they receive. While some argued of the dangers of discontinuing NSA bulk collection of American phone data – implying the program’s effectiveness – , studies have repeatedly “found no evidence that it had ever thwarted a terrorist attack.”
The USA Freedom Act will reinstate the FBI’s roving wiretap and lone-wolf provision. It will not, however, do anything “to affect another major Snowden revelation: the NSA’s collection of foreign Internet content from U.S. tech companies, a program that sweeps up lots of American communications. And it doesn’t address the bulk of Snowden disclosures about foreign intelligence gathering and the NSA’s attempts to exploit technology, such as encryption, for the benefit of U.S. intelligence.” AP reporting argues “it’s practically inconsequential in the universe of the National Security Agency’s vast digital spying operations, a technical overhaul of a marginal counterterrorism program that some NSA officials wanted to jettison anyway.” Secrecy News’ Steven Aftergood noted that while the legislation did not go as far as some on either side of the debate would have liked, time will tell if it is “the beginning of a recalibration of intelligence policy, or is it the most that Congress can accomplish and the end of the reform process”.
The Associated Press reported this week that, “The FBI is operating a small air force with scores of low-flying planes across the country carrying video and, at times, cellphone surveillance technology — all hidden behind fictitious companies that are fronts for the government.” The surveillance conducted by this secret air force is “generally used without a judge’s approval.” The AP traced the government’s use of civilian surveillance planes to at least 13 fake companies, including KQM Aviation, NBR Aviation and PXW Services, which are all “registered to post office boxes in Bristow, Virginia, which is near a regional airport used for private and charter flights. Only one of them appears in state business records.” The companies’ names are redacted from DOJ Inspector General reports. Matthew Aid culled Federal Aviation Administration databases in his ongoing information on the topic, and has posted additional open source intelligence on the FBI’s aviation program.
Federal magistrate Judge Stephanie Gallagher is launching an investigation into whether or not the Justice Department destroyed documents during the investigation into former NSA whistleblower Thomas Drake, according to McClatchy. In 2002 and 2003 Drake began cooperating with the Pentagon Inspector General’s office investigating the NSA’s surveillance programs and was charged by the government in 2010 under the Espionage Act. The charge was dropped in 2011 in a case that US District Court Judge Richard Bennett called “unconscionable,” adding that it didn’t “pass the smell test.” Gallagher launched her inquiry “after Drake’s lawyers in April accused the Pentagon inspector general’s office of destroying possible evidence during Drake’s criminal prosecution, which ended almost four years ago.”
Reuters recently reported that the US tried – and failed – to launch a Stuxnet-like attack on North Korea. The attack against North Korea was launched simultaneously with the Stuxnet virus, which attacked Iranian nuclear centrifuges in 2009 and 2010 and was allegedly the result of US-Israeli collaboration, but failed due to the “extreme isolation” of Pyongyang’s communications system.
A Social Security Administration Inspector General report revealed that $20.2 million in Social Security benefits was paid “to more than 130 United States residents linked to Nazi atrocities over the course of more than a half-century, with some of the payments made as recently as this year.” The report further noted that nearly all of the payments were proper under policies in effect at the time, and that the benefits could not be suspended until an individual was deported. The investigation was spurred by Associated Press reporting.
This week’s #tbt document pick is chosen with the Archive’s Nuclear Vault latest posting examining a new book containing the Nixon White House’s Top Secret considerations of nuclear options against North Vietnam in September 1969 in mind. This week’s #tbt pick is a Top Secret August 10, 1972, memo entitled “Kissinger,” in which Kissinger said: the “President’s strategy has been (in the mid-East crisis, in Vietnam, etc.) to ‘push so many chips into the pot’ that the other side will think we might be ‘crazy’ and might really go much further.”
Archive FOIA Project Director Nate Jones Testifies Before House Oversight Committee On Need for Fee Fixes, FOIA “Beat Cop”
This afternoon the Archive’s FOIA Project Director Nate Jones is testifying before the House Committee on Oversight and Government Reform for its hearing on “Ensuring Transparency through the Freedom of Information Act (FOIA),” which can be viewed here. Below is a copy of Jones’ expert testimony.
Statement of Nate Jones
Director of the Freedom of Information Act Project of the National Security Archive, George Washington University
Before the United States House of Representatives Committee on Oversight and Government Reform on “Ensuring Transparency through the Freedom of Information Act”
Rayburn House Office Building, Room 2154, Washington D.C.
Tuesday, June 2, 2015
Mr. Chairman, distinguished members of the Committee: thank you very much for your invitation to testify today about ensuring transparency through the Freedom of Information Act. My name is Nate Jones and I am the Director of the Freedom of Information Act Project of the independent, non-governmental National Security Archive, based at the George Washington University.
At the National Security Archive, we have filed more than 50,000 Freedom of Information Act requests in our efforts to challenge government secrecy, inform the public debate, ensure government accountability, and defend the right to know. We have conducted fourteen government-wide Freedom of Information Act audits that have displayed the inner-workings (or non-workings) of over 250 government agency and component FOIA shops. Our White House e-mail lawsuits against every President from Reagan to Obama have saved hundreds of millions of messages, and set a standard for digital preservation that the rest of the government has not yet achieved –as we know from the State Department. The Archive has won prizes and recognition including the James Madison Award for championing the public’s right to government information, an Emmy Award for news and documentary research, and the George Polk Journalism Award for “piercing self-serving veils of government secrecy.”
The key point that I would like to convey to you in my testimony is that the tremendous promise of the Freedom of Information Act –a tool that citizens can use to effectively and efficiently gain access to records produced by their government– has not been fulfilled. As any FOIA requester will likely tell you, using the FOIA to gain access to government records is far too frequently a huge challenge –often because government agencies want it to be one.
I would like to present to you today three of the largest barriers for Freedom of Information Act requesters; what I believe to be the overarching reason for these barriers; and how I believe the Committee can help to reduce them. The first barrier is agencies’ problematic (and fiscally unnecessary) use of FOIA fees to deter requesters from requesting government information. The second barrier is the increasing trend of agencies using FOIA exemptions, often Exemption Five, to censor embarrassing or inconvenient information that should be released. The third barrier is the inability of the federal government to harness technology to process FOIA requests and post FOIA releases online so that the public can have access to these released records more quickly. And finally, I’d like to point to the overarching problem that there is no real oversight of federal FOIA programs; no FOIA beat cop to ensure that agencies are effectively processing requests, not improperly withholding information, adhering to the spirit of the Freedom of Information Act, and effectively and efficiently releasing information to their public.
But before I begin on barriers, I must note that there are dozens of exemplary agencies that have up-to-date FOIA regulations, complete most or all requests within the required time limit, waive FOIA fees as a matter of policy, consistently release as much information as is truly possible, and post releases online. Likewise, there are hundreds of star FOIA professionals that I have met during my service with the American Society of Access Professionals who really do have “transparency in their bones,” and place the requirements of the Freedom of Information Act above bureaucratic concerns and fear of embarrassment. To these agencies and FOIA specialists, thank you! I guess, in this case, the reward for competence is inconspicuousness.
Frequently, the first negative interaction a FOIA requester experiences with an agency is over fees; often because many agencies have adopted a strategy of using the specter of high FOIA fees to deter people from making requests. The Federal FOIA Advisory Committee, made up of government and non-government members including myself, has identified fees as the most frequently contentious issue in the FOIA process for those both inside and outside government. Miriam Nisbet, the former director of the FOIA Ombuds office, recently confirmed that some agencies use fees to dissuade people from filing FOIA requests.
The need for exorbitant fees to pay for FOIA requests is unnecessary from a fiscal perspective. According to the government’s own most recent figures (FY 2014), the 100 agencies covered by FOIA processed 714,231 requests at a cost of $441 million dollars –well worth it considering the value of a government accessible to its citizens. Total fees paid by FOIA requesters were just $4.2 million, less than one percent of the cost of implementing the Act.
The use of fees to dissuade people from making requests becomes even more questionable when one understands that the money collected from fees goes to the U.S. Treasury’s General Fund, not to defray actual agency FOIA costs; and, that as the statute is written, educational, scientific, and media FOIA requesters are not required to pay most FOIA fees, only everyday requesters are.
Many high fee estimates are also probably illegal. The 2007 FOIA amendments make it very clear that any time an agency misses its twenty-day statutory deadline to process a request, the agency is only allowed to charge copying fees to non-commercial requesters. Agencies, with the support of the Department of Justice, have improperly skirted the intent of these provisions so often that both FOIA bills currently pending in Congress include language (the Senate’s is ironclad) which should prohibit these fee hijinks, once and for all.
The second major barrier I would like to address is the improper withholding of information requested under FOIA. This Sunshine Week, White House spokesperson Josh Ernest repeated a Department of Justice figure touting a 91% release rate under FOIA. But this figure is extremely misleading. DOJ numbers ignore nine of the eleven reasons FOIA requests are denied, including improper no records responses, administrative closures, and “fee related reasons.” If you include all the reasons FOIAs were denied to get your data, the actual release rate is just over 50 percent –and many of those “partial releases” contain swaths of completely redacted pages.
More startling is the Associated Press’ recent finding that almost a third of all FOIA denials that are appealed lead to the release of more information. That is: when challenged, government agencies admit they wrongly withhold information from requesters almost a third of the time. The DOJ reports that in the last fiscal year, just 12,754 requests (3 percent of denials) were appealed. Extrapolating, this means that it is possible a staggering 71,024 or more requests were closed by agencies that withheld too much, or all of the information that requesters sought.
As this committee well knows, the most oft-abused FOIA exemption is Exemption Five, which allows agencies to choose to withhold any “inter‐agency or intra‐agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” as well as an agency‐claimed “draft.” This exemption, earlier characterized by John Podesta the “withhold it because you want to” exemption, is the go-to tool that agencies use to withhold embarrassing, incriminating, or –sometimes even– burdensome-to-process documents. In an emblematic (and ironic) misuse of Exemption Five, the Federal Election Commission once used it to censor its own guidance on when to use Exemption Five –even though it had already been posted on the FEC’s website.
Certainly, not all evocations of Exemption Five are improper. There are of course occasions where Exemption Five can and should be invoked to protect attorney client privilege and candid advice between officials. But its ever-rising use shows that it is being abused far more than it is being properly used. Just a week ago The Washington Post’s Al Kamen published an email about a potential traffic delay sent within the Department of Justice (the agency required to “encourage compliance” of the FOIA). This innocuous email was marked “ATTORNEY-CLIENT PRIVILEGED COMMUNICATION”, “ATTORNEY WORK PRODUCT”, and “SENSITIVE/PRIVILEGED COMMUNICATION”. The implication is clear: emails are marked this way so they can be “knee-jerk” denied using Exemption Five in response to FOIA requests.
Infuriatingly, Department of State officials are continuing their painstaking review of former Secretary of State Hillary Clinton’s emails to withhold information under Exemption Five (a discretionary exemption) even though she herself stated that she wants them released for the public to see. Just days ago, the Department of State improperly used Exemption Five to attempt to censor a line where the former Secretary noted that “using private security experts to arm the [Libyan] opposition should be considered.” We must remain vigilant as their review continues that our access to our history of knowledge of our government’s operations is not “B5’ed away.”
Exemption Five’s power to deny records can be even stronger than the security classification system. Recently the Central Intelligence Agency cited Exemption Five’s deliberative process, not national security risks, to withhold the “Panetta Review,” an internal account of its torture program, from Vice reporter Jason Leopold. The reason: a declassification review would have in-all-likelihood led to the release of portions of the report; the broad latitude of Exemption Five allowed the CIA to withhold it all.
The Central Intelligence Agency may have learned of “the power of Exemption Five” during its declassification battles with the National Security Archive. The Archive has had much success convincing declassification reviewers and judges that many historic CIA documents no longer merit continued classification; we have had less success when the CIA uses Exemption Five. The Agency continues to hide the final volume of its history of the 1961 Bay of Pigs Invasion not by claiming that it contains classified national security secrets, but by claiming it is a “draft,” that its release could “confuse the public” and that, therefore, this document should remain hidden indefinitely.
Last summer, in a two-to-one decision, the DC Court of Appeals agreed with the agency. It wrote: “According to the FOIA requester, the CIA’s interest in protecting any contentious or sensitive issues discussed in the draft of Volume V has diminished over time. But unlike some statutes, such as certain provisions of the Presidential Records Act, see 44 U.S.C. § 2204(a), Exemption 5 of FOIA does not contain a time limit. We must adhere to the text of FOIA and cannot judicially invent a new time limit for Exemption 5.”
Fortunately, your Committee has taken up the Court’s challenge. The bipartisan FOIA Oversight and Implementation Act of 2015, HR 653, that you unanimously passed out of Committee this February contains two important provisions that will go a very long way toward curtailing agency Exemption Five abuse. It amends the law so that agencies cannot use Exemption Five to withhold information that is older than 25 years. (The Presidential Records Act forbids the use of Exemption Five for all documents beginning twelve years after the president leaves office. Certainly, agency documents should not be withheld when presidential documents cannot be.) Second, the bill’s language stating that “records that embody the working law, effective policy, or the final decision of the agency” cannot be withheld under Exemption Five is highly lauded by the National Security Archive –and no doubt the 50 other organizations on the record supporting the most robust strengthening of the Freedom of Information Act as possible.
One warning though: as Congress closes some loopholes used to withhold information from the public, agencies will look for new ones. The current 2016 National Defense Authorization Act includes a dangerous provision for the vast expansion, government-wide, of the amount of information that can be withheld under FOIA’s Exemption Two, which covers internal agency practices. (The Supreme Court wisely curtailed this expansive exemption in its 2011 Milner v. Department of Navy decision).
Likewise, the National Security Archive has heard that the State Department is or will soon ask Congress for a new “Statutory” Exemption Three provision to exclude foreign government information. This, to quote my Director Tom Blanton, “Is a terrible idea.” As he correctly explained to the Senate Judiciary Committee: “Right now, such information earns protection only if it is properly classified, meaning that its release would harm an identifiable national security interest. Even with this limitation, the State Department routinely abuses the designation…A ‘foreign government information’ exclusion as a b-3 exemption would effectively import into our laws the lowest common denominator of foreign countries’ secrecy practices. Instead, the standard needs to be ‘foreseeable harm’ to our own national interests, with a ‘presumption of disclosure.’ We can lower our standards so diplomats are more comfortable cozying up to dictators, or keep everyone on notice that ours is an open society, and that’s where we draw our strength and our ability to address and fix problems.”
Thanks to the members of this Committee and their staffs for presenting legislation that will roll back the most oft-abused FOIA exemptions and for continuing to monitor, flag, and push back against potential new statutory exemptions which could undermine the FOIA.
The third barrier to access to information that I would like to highlight is the inability of agencies to harness technology to improve the records management and FOIA processes, a problem that members of the Committee have long sought to improve.
Perhaps a silver lining to the State Department’s email fiasco is that the public now has an inkling as to just how anachronistic record keeping systems are at the Department of State, and indeed across the federal government. When agencies, in 2015, still practice a “print and physically file” system to preserve email records, we know there is something direly wrong with the federal IT system.
According to a Department of State Office of Inspector General report, in 2011 just .006 percent of emails throughout the entire Department were saved. The sad irony is that although former Secretary Clinton was likely in breach of record keeping laws and best practices, her personal email system preserved emails better than that the State Department’s system. Of course, neither Clinton’s emails nor the billions of deleted Department of State emails were searched and processed in response to FOIA requests. Because the Department of State relied primarily upon a “print and file” system to save digital records, a generation of our records has been lost.
The Department of State has borne the brunt of criticism for its willful deletion of federal record emails, but the problem is government-wide. In 2008, the OpenTheGovernment.org coalition and Citizens for Responsibility and Ethics in Washington (CREW) surveyed the government and could not find a single federal agency policy that mandated an electronic record keeping system agency-wide. The same year –seven years ago– the Government Accountability Office produced an indictment of the “print and file” approach, concluding that even the agencies recognize it “is not a viable long-term strategy” and that the system was failing to capture “historic records “for about half the senior officials” surveyed. Despite ruling after ruling requiring White House emails to be saved, the Office of Management and Budget and the National Archives and Records Administration did not act until 2012 to require agencies to preserve their email. Even then, agencies received a four-year grace period to start doing what the White House has done since 1994.
Today, right now, federal agencies are still not required to digitally preserve their emails. The deadline, set by NARA, is December 31, 2016 for all federal agency e-mail records to be managed, preserved, and stored electronically. Three years later, in 2019, agencies are supposed to be managing all their records electronically. Until then, federal employees will continue to be allowed to select themselves which emails they believe to be federal records, print them out, and file them in a box. As long as this practice continues, it is unrealistic to expect that more than .006 percent of all emails across the federal government will be preserved or searched in response to FOIA requests.
Additionally, the majority of agencies are not harnessing technology to improve FOIA processing. This year, the Department of Justice pointed to an increasing number of FOIA requests (probably a good thing more citizens are interested in obtaining federal documents!) and the “increasing complexity” of requests received as reasons for the government’s growing backlogs and oft-slow response times. I would add one more reason: the government’s slow adoption of technology to more quickly and efficiently process requests. It is my hope this Committee can prod government FOIA shops to follow the private sector’s lead (which also deals with larger and larger amounts of “big data”) and utilize e-discovery tools, automated tools to redact privacy and other information which must be withheld, and continue to move FOIA processing from a paper based FOIA process to a digital one.
The National Security Archive is also extremely concerned that twenty years after the passage of the E-FOIA Act, only 40 percent of federal agencies are following the intent of the law. Just 67 out of over 165 agencies covered by the Archive’s latest FOIA Audit –coauthored with my esteemed colleague Lauren Harper– are routinely posting documents released through FOIA and reducing the processing burden on the agencies and on the public.
Long FOIA delays and growing FOIA backlogs make proactive disclosure even more important. The zero-sum setting of FOIA processing in a real world of limited government budgets means that any new request we file actually slows down the next request anybody else files; older requests slowing down our new ones, especially if they apply to multiple records systems. The Department of State argues that since it is now processing former Secretary Clinton’s emails, all other FOIA requesters need to take a number, have a seat, and wait (or sue). The only way out of this resource trap is to ensure that agencies post online whatever they are releasing, with few exceptions for personal privacy requests and the like. When taxpayers are spending money to process FOIA requests, the results should become public, and since agencies rarely count how often a record may be requested, requirements like “must be requested three times or more” just do not make sense. Many examples of agency leadership –posting online the Challenger space shuttle disaster records or the Deep Water Horizon investigation documents, for example– have proven that doing so both reduces the FOIA burden and dramatically informs the public.
Our audit this year found 17 out of 165 agencies that are real E-Stars, which disproves some assertions that it is just too difficult to post released FOIA records online. The excuse most frequently given against online posting is about complying with disability laws; that making records “508-compliant” is too burdensome and costs too much for agencies actually to populate those mandated online reading rooms. In fact, all government records created today are already required to be 508-compliant, and widely-available tools like Adobe Acrobat automatically handle the task for older records with a few clicks.
The Department of State, notwithstanding its problems of FOIA and records management, leads all federal agencies in its approach to posting FOIA releases online. As an E-Star, State’s online reading room is robust, easily searchable, and uploaded quarterly with released documents – which allows requesters a useful window of time with a deadline to publish their scoops before everybody gets to see the product. State accomplished this excellent online performance using current dollars, no new appropriations. State’s FOIA personnel deserve our congratulations for this achievement. When Secretary Clinton’s e-mails finally get through the department’s review (which should not take long, since none were classified), they should be posted onto State’s online reading room, which will provide a real public service for those reading her e-mails.
In light of these problems, I strongly agree with the language in your bill that requires that agencies shall “make information public to the greatest extent possible through modern technology.” They have a long way to go, but it is high time agencies began harnessing the power of modern tech.
The final, overarching point that I would like to make for the Committee today is that the root cause for the FOIA problems and the underlying reason for much of the public unhappiness with the Freedom of Information Act that you’ve heard today is the lack of an independent, robust, organization that monitors, and forces FOIA compliance throughout the federal government –a FOIA beat cop, if you will.
The Office of Government Information Service, created by the FOIA reforms of 2007, may have been envisioned by Congress to play this role, but in my opinion, it has not yet. It certainly doesn’t help that it has not had a director for more than six months, notwithstanding the efforts of Acting Director Nikki Gramian.
This February, OGIS’s past director Miriam Nesbit testified to your Subcommittee on Government Operations: “If you want recommendations, reports, and testimony that have not had to be reviewed, changed, and approved by the very agencies that might be affected, then you should change the law.” She was right. As of now, OGIS is not independent and thus cannot serve its Ombuds role. Fortunately, your pending legislation will go a long way to fixing this.
Unfortunately, at least from my perspective, Ms. Nesbit also testified that while she believed OGIS should be independent, she did not believe OGIS “wants to or will be the FOIA police.” Nevertheless, when it was created in 2007, Congress gave OGIS the power to “issue advisory opinions if mediation has not resolved [a FOIA] dispute.” OGIS has completed over 3,000 FIOA mediations, but unfortunately in my view, has yet to issue a single advisory opinion.
I believe some type of “FOIA police” is needed to fix and prevent many of the incidences of unfair fee levying, decades-long FOIA waits, and improper withholdings that your Committee has heard about today. OGIS, to me, could be potentially well-suited to serve this role, but is not currently and unfortunately does not aspire to.
The Department of Justice Office of Information Policy also is not a FOIA beat cop that requesters can turn to. Its mission is to “to provide legal and policy advice to all agencies on administration of the FOIA” and also to “encourage agency compliance with the law and for overseeing agency implementation of it.” (OGIS is charged to “review” compliance.) Having worked with the professionals DOJ OIP for over five years, my sense is that the office does a superb job helping agencies with legal and policy advice, but has done far too little “encouraging” agency compliance with the law. When members of the Federal FOIA Advisory Committee met with the DOJ OIP last year, the office confirmed that the extent of the compliance was ensuring that agencies properly submitted their annual reports.
So the problem remains. Congress can and will pass good legislation with good ideas such as requiring agencies to regularly post FOIA releases online (1996) and prohibiting agencies from charging many FOIA fees if they miss their deadline (2007), but without a FOIA enforcer –from OGIS, DOJ, the White House, or some other entity– some agencies will continue to flout the law without consequence.
According to reporting from the Wall Street Journal, this is precisely what happened at the Department of State. A high-level political appointee intervened and stopped the release of documents State Department FOIA professionals had determined could be viewed by the public without harm. A FOIA specialist was called into high level policy meetings to advise on how to hide documents from disclosure (including by marking them “deliberative process”). Other problems at State likely continue today, the Journal reports, “that there is no pressure on bureaus or embassies to respond to document searches in a timely fashion; that FOIA specialists hold little stature; and that there are no consequences for people who don’t produce documents requested.” The most troubling aspect is that these issues are not isolated to one department. Due to the absence of FOIA beat cops, this behavior –which your Committee has now seen many examples of– spans the federal government.
The current processes of “encouraging” and “reviewing” agency compliance with FOIA are not actually establishing agency compliance with FOIA. My fear is that without a robust enforcement entity, the Freedom of Information Act reforms included in HR 653 will not fundamentally fix the root cause of the problems your Committee has heard today.
Esteemed members of this committee: thank you again for holding this hearing today and for your support of the Freedom of Information Act. Thank you for your unanimous passage of HR 653, the FOIA Oversight and Implementation Act of 2015. Your dedication to this issue makes me hopeful that this strong FOIA reform will be enacted this session and that more documents will be released to more people, more quickly.
I ask the Committee’s permission to include this statement in the record, and to revise and extend these prepared remarks to include responses to the other witnesses today.
Nate Jones is the Director of the Freedom of Information Act Project for the National Security Archive. He oversees the thousands of Freedom of Information Act (FOIA) and Mandatory Declassification Review (MDR) requests and the hundreds of FOIA and MDR appeals that the Archive submits each year. An active member of the American Society of Access Professionals (the professional association of government FOI officers), he acts as liaison between Archive analysts and agency FOIA offices, and serves as the Archive’s FOIA counselor to the public. He is editor of the Archive’s blog Unredacted where he writes about newly declassified documents and FOIA policy. He has authored the Archive’s past five government-wide FOIA Audits, including The 2015 E-FOIA Audit: Most Agencies Falling Short on Mandate for Online Records. He earned his MA in Cold War History from The George Washington University, where he used FOIA to write his thesis on the 1983 “Able Archer” nuclear war scare. He has produced The Able Archer 83 Sourcebook, the comprehensive declassified collection of documents on the incident. His article, “Countdown to Declassification”in the Bulletin of the Atomic Scientists, examines the intersection of Able Archer 83, nuclear miscalculation, and government secrecy.
Meaning of “Discretionary” Lost on Some FOIA Processors, Section 215 Sunset Fast Approaching, and Much More: FRINFORMSUM 5/28/2015
The State Department’s use of FOIA’s discretionary b5 exemption – that allows agencies to withhold any “interagency or intra-agency communication,” as well as any agency-claimed “draft,” from the public – to unnecessarily hide a suggestion from former Secretary of State Hillary Clinton is emblematic of the abuse of the b5 “withhold it because you want to” exemption across the government. The State Department recently released a batch of Clinton’s Benghazi emails, including an April 8, 2011, email from Clinton to Jake Sullivan containing a private intelligence report entitled, “UK game playing; new rebel strategists; Egypt moves in.” In the email Clinton notes that “using private security experts to arm the opposition should be considered,” a suggestion that is withheld in the official release. The New York Times posted an unredacted version of the email to its website revealing the suggestion, begging the obvious question, why did the State Department use the “deliberative process” exemption to hide this information?
The House Oversight and Government Reform Committee recently sought examples from the open government community, including the National Security Archive, of FOIA failures in preparation for its June 2nd hearing on systemic problems with the FOIA process. Nate Jones, the Archive’s FOIA Project Director, will be providing expert testimony. The Committee has also posted a form to its web site allowing members of the public to indicate which FOIA frustrations they’ve encountered, including “Excessive or inappropriate redactions” or “Lengthy delays.” Secrecy News’ Steve Aftergood notes that the scope of the Committee’s investigation into complaints about the FOIA process is “probably unprecedented.”
Surveillance legislation to rein in the National Security Agency’s (NSA) bulk collection of American phone records is facing an uphill battle in the Senate. The USA Freedom Act has already been approved by the House, but has failed to garner the necessary 60 votes in the Senate, and continues to face Senate Majority Leader Mitch McConnell’s (R-Ky.) adamant resistance. If no compromise is reached, the authority that the NSA interprets as granting it the right to collect and store metadata from Americans’ phone calls – Section 215 of the Patriot Act – will expire on June 1. Sen. Diane Feinstein, in a tepid attempt at compromise, proposed new legislation that “rolls back a number of key provisions in the USA Freedom Act” in an effort to prevent the NSA’s surveillance authority from lapsing.
A Department of Justice Inspector General report shows that — for seven years — the DOJ failed to implement privacy rules or provisions for information collected under Section 215, which also “enables intelligence agencies to obtain court orders to gather all manner of records in foreign terrorism investigations.” A 2006 reauthorization of the Patriot Act required the Department to do so, however it failed to adopt rules that met the statute until August 2013. The IG report found ”a significant amount of the delay is attributable to the department, specifically to disagreements between the FBI and NSD [National Security Division] over how to craft the rules.”
Marcy Wheeler recently posted a table compiled by the Office of the Director of National Intelligence (ODNI) “showing the status of procedures Agencies follow to protect US person information when using data obtained under EO 12333” to her blog, Empty Wheel. The key takeaway is a depressing one, and is that 34 years after the Reagan-era Executive Order that is the legal basis for most NSA surveillance went into effect, “several intelligence agencies still don’t have Attorney General approved procedures,” including the Drug Enforcement Administration’s Office of National Security Intelligence, the Department of Homeland Security’s Office of Intelligence and Analysis, and the Department of Treasury Office of Intelligence and Analysis.
Representatives Duncan D. Hunter (R-Calif.) and Jackie Speier (D-Calif.) have asked the Army’s Criminal Investigation Command (CID) to drop what they allege is a “retaliatory investigation” into Army Lt. Col. Jason Amerine “for whistleblowing to Congress over our completely dysfunctional system for recovering hostages.”Amerine says that the FBI formally complained to CID about his participation in the current Congressional investigation into hostage negotiating tactics, which was initiated after American hostage Warren Weinstein was killed in Pakistan in a drone strike this January.
A CIA interrogator filed a complaint in April 2013 with the agency’s Inspector General’s office seeking whistleblower protection from reprisal he allegedly faced for cooperating with the Senate Intelligence Committee’s investigation into the CIA’s torture program. In documents obtained by VICE News in response to a FOIA lawsuit, the interrogator claims the agency punished him by “failing to reimburse him for legal fees he incurred as a result of the investigations.” The documents notably reveal that, “those who were not involved in conduct relevant to the [Senate] report have been reimbursed. However, those who were involved in conduct relevant to the report, including [the interrogator who filed the whistleblower complaint] will have to wait until the [Senate] report is reviewed to ensure they are not implicated in any wrongdoing. [Redacted] reiterated that the [Senate] report’s findings have an impact on their indemnification.”
The Intercept reported this week both that the NSA considered bugging medical supplies to find Osama bin Laden, and that the NSA and its Five Eye counterparts planned to hack Google and Samsung app stores to infect smart phones. The plan to infiltrate bin Laden’s medical supplies is outlined in a June 2010 NSA presentation entitled, “Medical Pattern of Life: Targeting High Value Individual #1,” and it remains unclear if the plan transitioned from the idea stage to planning. The app store hack is revealed in a presentation on the Network Tradecraft Advancement Team, and was “part of a pilot project codenamed IRRITANT HORN.” Former NSA contractor Edward Snowden leaked both of the documents.
The State Department will begin releasing Hillary Clinton’s emails on June 30, and will update the releases every 30 days. The most recent timeline for releasing the former secretary’s emails was announced after the Department argued – and lost – that it could not make Clinton’s emails public until January 2016.
Excerpts of the diary of senior Soviet official Anatoly S. Chernyaev – published this week by the National Security Archive – covers the year 1975 and shows the Soviet Union was already facing a declining economy, contradictions between its policy of détente and its leadership of the international communist movement, and “senility” in its leadership. This is the tenth set of extracts the Archive has posted from the Chernyaev diary covering critical years from the 1970s through 1991.
This week’s #tbt document pick is chosen with news that a US Army lab in Utah sent live anthrax to facilities in nine other states and a US air base in South Korea in mind. Today’s #tbt pick is a collection of US and Soviet intelligence reports and diplomatic cables the Archive published in 2001 that attempt to determine the cause of the deadliest anthrax epidemic known, which occurred at a Soviet biological weapons facility located in Sverdlovsk (now Ekaterinburg, Russia) in 1979. At least 68 people died in the incident, which was a focus of intense controversy and heated exchanges between Washington and Moscow during the 1980s.
HRC Political Appointees Meddled in Politically Sensitive DOS FOIA Releases, Archive and Coalition of Historical Associations Win Remaining Grand Jury Testimony from Rosenberg Spy Trial, and Much More: FRINFORMSUM 5/21/2015
Hillary Clinton’s political aides while she was serving as the Secretary of State allegedly scrutinized politically sensitive documents requested under the FOIA. The Wall Street Journal reports that her chief of staff, Cheryl Mills, “insisted on reviewing all Keystone-related documents being prepared for release, and flagged as problematic a few that the department’s records-law specialists felt obligated to release.” Mills reportedly informed a FOIA specialist that if records were released that Mills wanted withheld, “Mrs. Clinton’s office wouldn’t comply with any future document requests on any topic.” The Journal further reports that the State Department was advised by a FOIA expert to shield Keystone pipeline documents by withholding them under the b(5) “withhold it because you want to” exemption. Troublingly, the report also noted “there is no pressure on bureaus or embassies to respond to document searches in a timely fashion; that FOIA specialists hold little stature; and that there are no consequences for people who don’t produce documents requested.”
Jason Leopold recently reported that the government argued — and lost — that it could not make former Secretary of State Hillary Clinton’s emails public until January 2016. The State Department filed court papers this week in connection with a VICE News FOIA lawsuit for Clinton’s emails maintaining it needed so much time because, “The collection is … voluminous and, due to the breadth of topics, the nature of the communications, and the interests of several agencies, presents several challenges.” The judge, however, “ordered the agency to being releasing the documents on a rolling basis.” The State Department’s focus on the HRC emails is likely bad news for FOIA requesters. Last week The Washington Post’s Al Kamen reported on the State Department’s use of “the Hillary Dodge” to delay processing pre-existing FOIA requests, highlighting a 2001 Archive request for Henry Kissinger’s 700-still-secret telephone conversations (telcons) that the State Department petitioned the US District Court that it needed more processing time, citing a huge “surge” in FOIA lawsuits and processing delays related to Hillary Clinton’s emails – all of which are unclassified.
In a huge win, this week the National Security Archive and a coalition of leading US historical associations won a petition for the release of key remaining grand jury records from the prosecution of accused spies Julius and Ethel Rosenberg. The Rosenbergs were indicted in 1951 in what was then billed as the “trial of the century,” convicted of espionage for the Soviet Union, and executed in 1953. In this week’s ruling, which secured the release of David Greenglass’ likely perjured testimony, US District Court Judge Alvin K. Hellerstein dismissed the Government’s argument that the release would rekindle antipathy towards the Greenglass family, and found, “The requested records are critical pieces of an important moment in our nation’s history. The time for the public to guess what they contain should end.”
The Washington Post’s Al Kamen recently highlighted the problem of incorporating control markings into email templates after obtaining an email from Janet Webb, deputy director of Enforcement Operations at the Department of Justice, on possible commuter traffic. The email warned DOJ employees that a demonstration scheduled in downtown DC might affect commutes home, and to “plan accordingly.” The bottom of the email is stamped “ATTORNEY-CLIENT PRIVILEGED COMMUNICATION,” “ATTORNEY WORK PRODUCT,” and “SENSITIVE/PRIVILEGED COMMUNICATION.” National Security Archive Director Tom Blanton told Kamen, “These automatic labels slow down all the processes, because they send a flag to the FOIA people not to release,” a sentiment reiterated by Secrecy News’ Steven Aftergood.
The New York Times reported that the US military used the classification system to hide which dangerous chemicals harmed soldiers in Iraq, and denied FOIA requests concerning information on the chemicals for a decade. The Army only recently released the 2003 Camp Taji Incident report, written by the multinational Iraq Survey Group, which found that the chemical soldiers came in contact with was a potentially fatal “carcinogen and poisonous chemical.” The Archive’s Director Tom Blanton told the Times that, in addition to the secrecy trumping common sense, that “the outrage here is extraordinary.” Blanton noted, “Soldiers exposed to something really dangerous cannot find out what it was because ‘Sorry it’s classified’?” he said. “It’s creepy and it’s crazy.”
A coalition of 140 technology companies, civil society groups, and security experts are petitioning the White House to refuse any government proposal that would grant law enforcement a “back door” into encrypted phone data. The FBI has argued in favor of companies building a US-government-only back door into devices that are increasingly encrypted. Former Bush administration senior policy official at the Department of Homeland Security, Paul Rosenzweig, said, “If I actually thought there was a way to build a U.S.-government-only backdoor, then I might be persuaded. But that’s just not reality.” Rep. Ted Lieu (D-Calif.) called the FBI’s suggestion “technologically stupid,” and George W. Bush’s cybersecurity adviser Richard Clarke said FBI director James Comey “is the best FBI director I’ve ever seen,” but “he’s wrong on this [issue].”
The liberal Center for American Progress (CAP) released a 182-page report this week that found the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) should be merged with the FBI. CAP’s findings echo long-standing Republican proposals. The CAP report found that ATF “is plagued by inadequate management, insufficient resources, burdensome restrictions and a lack of coordination,” and argues that the gun lobby, led by the National Riffle Association, has fought “to keep it a weak stand-alone agency. It has done so, according to the report, by lobbying Congress to keep ATF ‘underresourced’ and to attach provisions to appropriations bills, limiting its ability to do its job.” The Department of Justice, which oversees both the ATF and the FBI, supports maintaining the ATF as an independent agency.
The General Counsel for the Office of the Director of National Intelligence, Bob Litt, recently weighed in on a debate surrounding the classified annexes that accompany intelligence appropriations bills, none of which have ever been made public and that Seven Aftergood characterized as “secret law.” Aftergood initially noted that the annexes “legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.” He notes, however, that the secret intelligence legislation is but “a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.” Litt responded by saying, in short, that, “The schedule of authorized amounts that is contained within the classified annex does have the force of law, but the rest of the classified annex does not.” Aftergood accepted the correction, and applauded Litt for participating in the public dialogue.
The Office of the Director of National Intelligence declassified 103 documents recovered from the Abbottabad compound in Pakistan where Osama bin Laden was killed in 2011 this week. The released documents – which are a small fraction of those recovered – include bin Laden’s reading material, which the ODNI has dubbed “Bin Laden’s Bookshelf,” and an application to join al Qaeda that includes space for the applicant to indicate if they wish to participate in a suicide mission.
The Army’s Delta Force “came away with a treasure trove of materials” after this weekend’s raid to kill the Islamic State’s finance chief in Syria. A spokesperson said the team “left with laptops, phones, documents and, likely, hard drives, DVDs, CDs and SIM cards,” and an initial assessment of the records’ contents is currently underway.
Poland is paying a quarter of a million dollars in reparations to a Palestinian man and a Saudi national, who were charged with orchestrating the 2000 USS Cole bombing and were held at a CIA “black site” prison in the eastern European country where they were tortured by CIA interrogators. Last July the European Court of Human Rights ruled Poland had violated the men’s rights, and required Poland “seek diplomatic guarantees from the United States that the suspects not face the death penalty, a request that Poland sent several weeks ago,” in addition to the reparations. The case has caused tension in part because no US officials have been prosecuted in connection with the CIA’s torture program. The plaintiffs are currently held at Guantanamo.
The Special Inspector General for Afghanistan Reconstruction (SIGAR) announced that Afghanistan’s future “is threatened by the [US] military’s chronically poor intelligence on Afghan security forces and an anemic central government in Kabul that is unable to operate on its own” during a recent speech in Washington. Part of the blame for the US’ poor intelligence on Afghan forces lies with the measurement system the US uses to monitor training successes, which has changed four times in the last decade, making meaningful comparisons virtually impossible. SIGAR also released an audit this Wednesday calling for disciplinary measures against three high-ranking Army officials in relation to waste and mismanagement at Camp Leatherneck.
This week’s #tbt document pick is chosen with the Archive’s recent victory in obtaining David Greenglass’ grand jury testimony in mind, and are the grand jury testimonies of Ethel and Julius Rosenberg, which the Archive and historical associations won the release of in 2008. The posting also contains the testimonies of 41 of the 45 witnesses who appeared before the grand jury between August 1950 and March 1951.
NSA Declassifies Friedman Collection, FOIA Request Shows FTC’s Efforts to Kill FOIA Reform, CIA Should Declassify “Anatomy of a Lead” in Wake of Sy Hersh Article, and Much More: FRINFORMSUM 5/14/2015
The National Security Agency (NSA) recently declassified and released over 50,000 pages (7,000 records) concerning cryptographer William Friedman, arguably the founding father of the intelligence agency and the US’ scientific approach to code-breaking. Prior to his tenure at the NSA, Friedman ran the Army’s Signals Intelligence Service, which broke Japan’s “Purple” cipher intended to protect the most sensitive diplomatic messages, and built the SIGABA encryption machine – “which, unlike the German Enigma or the Japanese Purple systems, protected Allied communications through World War II and beyond without ever having been cracked…at least not that we know of.” Dr. Dave Sherman, the NSA’s Associate Director for Policy and Records, recently published an excellent article on the Public Interest Declassification Board’s blog about the declassification of the Friedman collection, noting that 85% of the collection was declassified in full (he does not, however, hint what information is still too sensitive for release). Sherman argues that despite the time consuming nature of the declassification – declassifying the Friedman collection two years, largely thanks to the page-level review of each document – “declassification projects which are the most challenging to undertake are also likely to be the most historically relevant. They should be at the top of our to-do list, and we also need to find new ways to do them quickly and comprehensively.”
New FOIA bills in both the House and the Senate stand a good chance of becoming law – in large part because both contain common-sense, cost-saving improvements that will help ordinary requesters by, among other things, reining in the oft-abused b(5) exemption, fixing fee issues, and strengthening the FOIA ombuds office. The bills were reintroduced this session after lobbying by pro-secrecy government and private interests prevailed over unanimously approved, bipartisan legislation in the 11th hour of the last Congressional session. Former Senator Jay Rockefeller (D-W. Va.), for example, placed a last-minute hold on the Senate bill last December over misplaced concerns regarding a central provision in the bill that would have required agencies to release information unless “foreseeable harm” would result. (FreedomInfo.org’s Toby McIntosh has an excellent, in-depth post mortem of the bill here.) The hold was ultimately lifted, only for legislation to die in the House.
In a bit of poetic justice, MuckRock’s Shawn Musgrave filed a FOIA request with the Federal Trade Commission (FTC) for communications the agency had with Sen. Rockefeller concerning the Senate bill. Musgrave recently received 25 pages of documents in response to his request, which quotes a member of Rockefeller’s staff telling an FTC employee that, because the bill is “widely supported by a broad coalition of good govt groups,” he was inclined to let the FTC explain why it had requested the Senator place a hold, rather than the Senator himself. The same FTC employee also acknowledged that the agency viewed itself as a “small fry” in the FOIA bill debate…but that didn’t stop it from trying to kill it for everyone anyway.
New York Times reporter Carlotta Gall recently weighed in on Sy Hersh’s latest expose on the 2011 raid to kill Osama bin Laden. Hersh’s article argues, among other things, that: bin Laden had been a Pakistani prisoner in the Abbottabad compound since 2006; the US learned about bin Laden’s whereabouts from a Pakistani intelligence officer who wanted to claim the $25 million reward – not bin Laden’s courier as the US government previously claimed; and that the US did not retrieve a “treasure trove” of documents from the compound. While the White House and the CIA called Hersh’s story “utter nonsense,” Gall says that her research concerning a Pakistani official betraying bin Laden’s location “tracks with Hersh’s.” While Gall is less moved by Hersh’s argument that no treasure trove of documents was found at Abbottabad, she says it underscores “the need for more openness from the Obama administration about what was found there.”
A good start for more openness would be for the CIA to declassify a September 2010 memo entitled “Anatomy of a Lead,” chronicling how the Agency identified Abu Ahmed al-Kuwaiti, bin Laden’s courier who allegedly led the US to him. The Archive submitted a mandatory declassification review (MDR) request for the widely circulated (and reported) memo concerning bin Laden’s capture, but the CIA denied our request citing its operational files exemption. The decision was unfortunately upheld by the Interagency Security Classification Appeals Panel, which reiterated the argument that if such records existed, they would be contained in the CIA’s operational files, and exempt from search and review. This document is, upon information and belief, included in the 6 million pages reviewed to produce the Senate Torture Report, and pursuant to 50 USC 431(c)(3), which specifically provides that “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity” should continue to be subject to search and review.
Secrecy News’ Steven Aftergood reported this week on the executive branch’s upcoming system of “controlled unclassified information” (CUI) for “safeguarding unclassified information that is to be withheld from public disclosure.” The standard, government-wide system will replace agencies’ ad hoc approaches, and “limits the prevailing autonomy of individual agencies and obliges them to conform to a consistent government-wide standard.” Under the new guidelines agencies may not control any information that is not part of the CUI program, nor can they independently determine what qualifies as CUI. One complication with the program, however, is that “removing CUI controls does not equate to or imply public release.”
In 2012 the FBI demanded that the University of South Florida (USF) “immediately return copies of e-mails from one of its agents” concerning disgraced associate professor Dajin Peng. The agent, Dianne Mercurio, had been in contact with Peng since 2009, encouraging him to spy on connections Peng had high within Chinese intelligence circles, and leveraged Peng’s tenuous position at USF, where he was being investigated for falsifying expense accounts, making inappropriate advances towards female colleagues, and keeping explicit material on a USF computer, to compel him to keep spying. Fortunately, USF followed Florida’s open government law and released Mercurio’s e-mails in response to a request from Bloomberg News.
The Director of the Department of Justice’s Office of Information Policy (OIP), Melanie Pustay, recently testified before a Senate Judiciary Committee hearing, that when “processing requests for disclosure, the government continued to maintain a high release rate of over 91%, marking the sixth straight year in which the government’s release rate was above 90%. This means that records were released, either in full or in part, in response to 91% of requests where the government was in a position to make a disclosure determination.” The 90% release rate is also touted in OIP’s summary of annual FOIA reports for FY2014, but it is a misleading figure. As Archive Director Tom Blanton noted in his own Senate testimony, to calculate that figure the DOJ includes only final processed requests, and the DOJ statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%. And what about the records that the DOJ counts as successfully released, either in full or in part? The FBI’s recently released – and nearly entirely redacted – 5,000 pages of documents in response to documents on its use of StingRay cell phone tracking technology would be another trumped up – and unwarranted – success statistic.
Sen. Barbara Boxer blasted the secrecy surrounding the Trans-Pacific Partnership (TPP) negotiations on the Senate floor this week, recounting her efforts to read the text for the multinational trade agreement that is inexplicably classified (US chief TPP negotiator Barbara Weisel said in 2012 the text “cannot be released to the public” because it is constantly evolving, a claim upheld by then-US Trade Representative Ron Kirk). Boxer said a member of Congress can only take staffers with security clearance to view the text, and, were the Congressperson to take notes, the notes would be taken away from them and placed in a file before they left. Affiliates of the 28 US government-appointed trade advisory committees providing advice to the US negotiators – like AT&T, General Electric, Apple, Dow Chemical, Nike, Walmart and the American Petroleum Institute – can, however, view the TPP text.
The Washington Post’s Al Kamen recently reported on a new tactic the State Department is using to delay processing FOIA requests– the “Hillary Dodge.” Kamen highlighted a 2001 Archive request for Henry Kissinger’s 700-still-secret telephone conversations (telcons) for his column “In the Loop,” noting the State Department petitioned for an additional six months to process our 13-year-old FOIA request in US District Court last week, citing a huge “surge” in FOIA lawsuits in and processing delays related to the processing of Hillary Clinton’s emails. The emails are all unclassified, making “The Hillary Dodge” a particularly feeble one.
Declassified records obtained by the National Security Archive and highlighted in a new report for The Intercept by former Archive staffer Jesse Franzblau and Cora Currier shed light on how the US has perceived and responded to allegations of serious human rights abuses committed by US-funded security forces in Mexico. Read the full story – and the documents behind it – here.
This week’s #tbt docunment pick is chosen with the 60th Anniversary of the Warsaw Pact in mind, and is a May 1961 speech by Soviet Defense Minister Marshal Malinovskii on the need for Warsaw Pact Offensive Operations.
Senate Judiciary Seeks NS Archive Testimony on Efforts to Improve Open Government, DOJ to Review “StingRay” Technology, and Much More: FRINFORMSUM 5/7/2015
The Senate Judiciary Committee asked the National Security Archive’s Executive Director Tom Blanton to deliver testimony for this week’s hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government,” which can be viewed here. Blanton – as always – delivered powerful testimony, emphasizing the need for a sunset to the B5 “withhold it because you want to” exemption, for more proactive disclosure online – because in this era, “the presumption of openness means a presumption of posting” –, and called for a SWAT team to process former Secretary of State Hillary Clinton’s emails, noting that since none of them are classified, the public should be able to see them without considerable delay.
Blanton also carried out the yearly tradition of correcting the overly-rosy FOIA numbers presented by the Department of Justice’s Office of Information Policy, and –this year– also misleadingly cited by White House spokesperson Josh Earnest. In his testimony Blanton notes that while “The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA… the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.” Blanton notes the DOJ numbers ignore 9 of the 11 reasons FOIA requests are denied, including improper “no records responses” and administrative closures, and points out that the actual release rate – of processed requests – is closer to 50 or 60%. Other highlights from the hearing included excellent testimony by the Associated Press’ General Counsel Karen Kaiser, Senator Al Franken (D-Minn) noting “we have yet to truly modernize FOIA,” and Senator Cornyn arguing for a presumption of openness.
The Archive joined colleagues, including OpenTheGovernment.org, the Federation of American Scientists, and DOCEX, in submitting comments to the CIA suggesting which CIA operational files, which, due to the CIA Information Act of 1984, are exempt from the FOIA, should be removed from their exempted status. Our number one suggestion? That the CIA stop calling histories “operational” and grant the public the ability to request search and review of the Clandestine Service History Program files.
The CIA, however, hides more than just histories in its operational records system. It routinely conceals historically important documents as well, including much of the official record on Osama bin Laden. Given how difficult it is to obtain official records on bin Laden (in large part because the DOD transferred many of its bin Laden records to the CIA in 2013) the Archive gladly touted the State Department’s recent release of three fascinating memos on tips concerning bin Laden’s whereabouts in the immediate aftermath of 9/11. One document, a Secret Department of State cable dated September 20, 2001, from the US Embassy in Caracas, Venezuela, subject: “Reported Information Related to NY and WDC Terrorist Attacks,” contains a tip that is likely correct – that bin Laden was in the Panjab-Kabul region of Afghanistan. The release of these documents provides a fascinating glimpse into the multi-threaded, many-dead-ended search for bin Laden, but they are a drop in the bucket compared to the vast swaths of information that remains obfuscated by the CIA’s damaging operational files exemption.
The Department of Justice is beginning a review of the agency’s use of “StingRay” cell phone tracking technology after reports – and subsequent lawsuits – that the US Marshals – with the aid of the CIA – were harvesting data from American cell phones from StingRays, small planes “mounted with controversial cell-phone tracking systems.” The DOJ, which is the parent agency for the Marshals, the FBI, the Drug Enforcement Administration (DEA), and a host of other law enforcement agencies, announced that it “is in the process of examining its policies to ensure they reflect the department’s continuing commitment to conducting its vital missions while according appropriate respect for privacy and civil liberties.”
A federal appeals court in Atlanta ruled this week in a 9-2 vote that the government doesn’t need a warrant to obtain historic cell phone location, reversing an earlier ruling. “The court agreed with a long-held view that an American has no reasonable expectation of privacy in certain types of information voluntarily turned over to third parties such as phone companies and banks.” Several of the concurring judges, however, suggested it might be time for the Supreme Court to re-evaluate the third party doctrine.
The National Security Agency (NSA) can now “automatically recognize the content within phone calls by creating rough transcripts and phonetic representations that can be easily searched and stored,” according to documents leaked by former NSA contractor Edward Snowden and recently published by the Intercept. Dubbed “Google for Voice,” the computer programs are “designed to analyze and ‘extract’ the content of voice conversations, and even use sophisticated algorithms to flag conversations of interest” – and were developed with no public oversight.
Steven Aftergood of Secrecy News reported this week on a growing body of secret law – specifically the classified annexes that have accompanied intelligence appropriations bills since FY1978, none of which has ever been made public. Politico reported just last month that “Senator Dianne Feinstein inserted a classified amendment in a spending bill to discourage” the shift of the drone program from the CIA to the DOD. Aftergood notes that the annexes “legislatively establish programs, allocate resources, impose requirements and prohibitions on executive agencies, and more– all without public notice or accountability.” He notes, however, that the secret intelligence legislation is but “a subset of an even larger problem of secret congressional records that, once classified, remain that way indefinitely.”
The DEA stonewalled Senators’ questions during a hearing this week, refusing to explain how a California university student was left in a holding cell without food or water for five days in 2012. The student, Daniel Chong, almost died of dehydration, and was awarded a $4.1 million settlement from the DOJ. A recently released DOJ inspector general report casts “doubt on DEA agents’ claims that they didn’t hear Chong’s repeated shouts and bangs in a bid to get someone’s attention.” While DEA Deputy Assistant Administrator of Drug Diversion Joseph Rannazzisi told Senator Chuck Grassley (R-Ia) that the incident was “regrettable,” he refused to confirm that the agency would respond to a 19-page letter Grassley sent last year concerning the incident. The DEA also ignored two letters from Senator Dianne Feinstein’s office concerning Chong’s treatment. The Los Angeles Times recently reported that the harshest punishment any of the DEA agents involved received was a seven-day suspension.
Leaked versions of heavily redacted Navy FOIA responses on conditions at Camp Lemonnier in Djibouti, the base for US pilots flying over Yemen and Somalia that is entirely dependent on civilian air-traffic controllers, reveals the base is chaotic, dangerous, and “mind-boggling.” The leaked documents – obtained by the Washington Post “from a source upset about the military’s attempt to conceal the problems” – reveal controllers habitually nap while on duty, chew qat – a traditional Yemeni stimulant banned in the US –, and intimidate those who attempt to regulate their behavior, even threatening a Navy officers with a pipe.
The National Security Archive recently posted key documents on Operation Condor that were presented by its Southern Cone analyst, Carlos Osorio, at a historic trial in Buenos Aires of former military officers earlier this year. During 10 hours on the witness stand Osorio introduced one hundred documents into evidence for the court proceedings. His testimony was profiled on May 3 in a major feature article published in the Buenos Aires daily, Pagina 12.
This week’s #tbt pick is chosen with Osorio’s testimony in mind, and is a selection of declassified documents that suggest the September 1976 car-bombing in Washington, D.C., which was planted by agents of the Chilean secret police under the car of General Pinochet’s leading critic in the United States, Orlando Letelier, and killed him and his American colleague Ronni Moffitt – might have been prevented.
Archive Director Tom Blanton’s Must-Read Testimony on the Administration’s Efforts to Improve Open Government
This morning the Archive’s Executive Director, Tom Blanton, is testifying before the Senate Judiciary Committee for its hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government,” which can be viewed here. Below is a copy of Blanton’s “must read” testimony.
Statement of Thomas Blanton
Director, National Security Archive, George Washington University
Before the United States Senate Committee on the Judiciary
Hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government”
Dirksen Senate Office Building, Room 226, Washington D.C.
Wednesday, May 6, 2015
Mr. Chairman, distinguished members of the Committee: thank you very much for your invitation to testify today about open government and the Freedom of Information Act. My name is Tom Blanton and I am the director of the independent non-governmental National Security Archive, based at the George Washington University.
At the Archive, we are veterans of more than 50,000 Freedom of Information requests that have changed the way history is written and even how policy is decided. Our White House e-mail lawsuits against every President from Reagan to Obama saved hundreds of millions of messages, and set a standard for digital preservation that the rest of the government has never yet achieved, as we know from the State Department. The Archive has won prizes and recognition ranging from the James Madison Award that Senator Cornyn deservedly received this year from the American Library Association – joining Senator Leahy in excellent company – to the Emmy Award for news and documentary research, to the George Polk Award for “piercing self-serving veils of government secrecy.”
This year we completed our 14th government-wide audit of agency FOIA performance, with more recommendations like the ones this Committee included in the landmark Cornyn-Leahy amendments in 2007 and again last year with the excellent FOIA reform bill this Committee passed unanimously through the Senate. My statement today addresses each of these areas of open government performance, and the lack thereof.
But first, I want to say that it is an honor to be here today on this panel with the general counsel of the Associated Press. Not only was the AP one of the founders of the now-ten-year-old Sunshine Week, the AP consistently ranks among the most systematic and effective users of the Freedom of Information Act. I am especially grateful to the AP for taking on the number-crunching task of making sense of agency annual reports on FOIA, and providing a common-sense analysis that parts ways significantly from the official spin. The White House proudly repeats Justice Department talking points claiming a 91% release rate under FOIA. But the AP headline reads, “US sets new record for denying, censoring government files.” Who is right? The AP is.
The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming “no records,” “fee-related reasons,” and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.
In the National Security Archive’s experience, most agency claims of “no records” are actually an agency error, deliberate or inadvertent. I say deliberate because the FBI, for example, for years kept a single index to search when a FOIA request came in, even though that index listed only a fraction of the FBI’s records. But the FBI could say with a straight face, we conducted a full search of our central index, and found no records, and the requesters would go away. Only when we called them on their abysmally high rate (65%!) of no-records responses (most agencies were averaging closer to 10%), did the FBI change their process.
I say inadvertent because FOIA officers may not know where the documents are, and most often the requester doesn’t either. This is why dialogue between the agency and the requester is vital, why a negotiating process where the agency explains its records and the requester in return narrows her request, makes the most sense. This is why the Office of Government Information Services is so important, to mediate that dialogue, to bring institutional memory to bear, and to report independently to Congress about what is going on. This is why the original Freedom of Information Act back in 1966 started with the requirement that agencies publish their rules, their manuals, their organization descriptions, their policies, and their released records for inspection and copying. This kind of pro-active disclosure is essential, and our most recent audit showed “most agencies are falling short on mandate for online records.”
I’ll come back to that point, but let me first give you some of the big picture, since you are examining this administration’s overall performance on open government. The tenth anniversary of Sunshine Week this spring prompted some tough questions: are we doing better than when we started that Week 10 years ago, or worse, or holding our own? As with so many multiple-choice questions, the answer is probably “all of the above,” but I would also argue, mostly better – partly cloudy. My daddy of course once shoveled four inches of partly cloudy off the front steps, so we have a ways to go.