FBI’s Police Shooting Tracking System a “Travesty”, British Cabinet Office Concealing War Scare Report Despite Strong Evidence for its Release, and Much More: FRINFORMSUM 12/10/2015
The FBI will replace its “travesty” of a tracking system for fatal police shootings by 2017. The new system will be shared with the public in near-real-time (the data is currently compiled at the end of each year), and will include statistics on “any incident in which an officer causes serious injury or death to civilians, including through the use of stun guns, pepper spray and even fists and feet.” The success of the system will rely on local police departments sharing the data with the bureau – an initiative only 3 percent of the nation’s 18,000 police departments have taken since 2011. The Justice Department’s Bureau of Justice Statistics is also launching a pilot program utilizing open-source data-collection efforts by The Washington Post, The Guardian, and others “to identify deaths that are not being reported. Then, BJS officials contacted police, medical examiners and other local officials to check the accuracy of the information and to gather additional facts.”
Nate Jones, the National Security Archive’s FOIA Project Director, requested a British joint intelligence committee document “that would shed fresh light on how Britain and the US came close to provoking a Soviet nuclear attack” in 1983 over a year ago. The Guardian reports that the British Cabinet Office, however, is continuing to block its release despite: the US’s release of thousands of pages of documents on the crisis; the UK’s vaunted 20-year-rule; and Michael Herman’s – former head of GCHQ’s Soviet division – call for the document’s release.
At least we can now play Able Archer 83, the “expandable strategy card game where you take command of a strategic cold war power and face off in a simulated military exercise against enemy forces” while we wait for the British Cabinet Office to uphold transparency and declassify this key document.
A recent article on ArsTechnica provides more detail on the technological factors that contributed to the 1983 War Scare – namely how the Soviet’s modeling for monitoring the balance of power between the US and the Soviet Union “nearly triggered WWIII”. KGB annual reports for the years 1981 and 1982 and posted on the Archive’s website corroborate the creation of Operation RYaN (the Russian acronym for Raketno-Yadernoye Napadenie, “nuclear missile attack”), the largest peace-time intelligence gathering operation in history to “prevent the possible sudden outbreak of war by the enemy.” The KGB software model constructed as part of Operation RYaN, however, “fed growing paranoia about the intentions of the United States, very nearly triggering a nuclear war.” As Sean Gallagher surmises, “Given all the weird inputs that the model was getting and the Soviet leadership’s predisposition to believe the worst of Reagan to begin with, the Politburo ultimately decided that Able Archer was, in fact, a cover for an actual surprise nuclear attack. They began acting accordingly.”The FOIA Advisory Committee’s latest meeting (held October 20 although the video was only made available recently, raising concerns that technical issues are hampering the Committee’s potential influence) tackled, among other things, OMB’s outdated and incomplete FOIA fee guidance. OMB’s guidance to all agencies on when and how they can charge FOIA fees dates from 1987 – well before the Internet Age and agencies’ ability to send FOIA responses via email – and is missing a key word. The Committee voted a formal “show of support” to recommend to the Archivist that he advise OMB to update its Fee Guidance, language for which will be provided in advance of the January 19, 2016 meeting. Other highlights from the meeting include discussion of the fee subcommittee survey, which was only given to government agencies (ostensibly because “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public). The National Security Archive and the Project on Government Oversight will soon distribute a similar, independent, unofficial fee survey to non-government FOIA stakeholders so that their views on FOIA fees can be cataloged and documented.
Matthew Aid recently highlighted a Drug Enforcement Administration (DEA) report on the threat Mexican drug cartels pose to the US on his website. Aid notes that the interesting report “is a nice compact order of battle of all the Mexican drug cartels. The DEA separately released a two page report that has a very nice map showing the respective areas of control inside Mexico of all the major Mexican drug cartels.”
The Special Inspector General for Afghanistan Reconstruction is widening its investigation into the Task Force for Stability and Business Operations for allegedly spending $43 million to build one compressed natural gas station “by [further] probing allegations that it spent $150 million, or nearly 20 percent of its budget, on private housing and security.” In a letter to the Secretary of Defense SIGAR notes that while it would have been more practical for the Task Force to live on US military bases, the Task Force – according to one official – “expressly avoided staying on military bases because ‘the goal was to show private companies that they could set up operations in Afghanistan themselves without needing military support.’” Accommodations included in the Task Force’s housing and furnished by tax payers included rooms equipped with 27-inch flat screen TVs and menu options of 3-star food, “with each meal containing at least two entrée choices and three side order choices, as well as three course meals for ‘special events.’”
A bipartisan congressional investigation has uncovered “a half-dozen previously undisclosed security breaches” at the White House since 2013, leading lawmakers to call the Secret Service an “agency in crisis”. The most eyebrow-raising finding involves new details of a September 27, 2014, Black Caucus Foundation’s awards dinner in which a man posed as Rep. Donald Payne Jr. (D-N.J.) and was escorted to meet the president. The report notes, “The agency’s recent public failures are not a series of isolated events, but the product of an insular culture that has historically been resistant to change”. Compounding “systemic mismanagement”, the agency is suffering from a “staffing crisis”, operating with only 6,315 agents – the lowest number personnel in a decade. Unsurprisingly, a recent Best Places to Work in the Federal Government poll found that only a third of Secret Service officers are happy with their job and would recommend it as a good place to work.
Mark H. Grunewald, James P. Morefield Professor of Law at Washington and Lee University School of Law, is undertaking a FOIA Oral History Project. The project seeks to document, through a series of individual interviews, the history of the implementation of the Freedom of Information Act by federal agencies, with a view toward having at least the first phase of the project completed by July 4, 2016, the 50th anniversary of the Act’s passage. If you are interested in providing voluntary feedback to Professor Grunewald you may contact him directly at 540-458-8526 or firstname.lastname@example.org. Please note that it is especially helpful if you have had frontline supervisory/ leadership responsibilities for FOIA implementation below the political level.
December 7th’s Final Jeopardy clue was “The website for this ’60s act says “First look to see if the information you are interested in is already publicly available”. The answer? The Freedom of Information Act, of course! FOIA Advisor’s Kevin Schmidt highlighted FOIA’s pop-culture moment here.
This week’s #tbt document pick is a 2003 posting on Nixon’s historic February 1972 trip to China, which includes Kissinger’s intelligence briefing to the Chinese and the complete texts of Nixon’s conversations with Zhou, including the assurances on Taiwan.
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The FOIA Advisory Committee’s latest meeting was held on October 20 but video of the meeting has just recently been posted online, over a month since the meeting took place. (Visit here for Part 1 and here for Part 2 of the video. OGIS also live-tweeted the meeting and posted a transcript of the meeting on November 19th.) This delay raises concerns that technical issues are hampering the Committee’s potential influence and stonewalling those not able to attend meetings in person in Washington, DC.
It’s likely that the slow turnaround time by the contractor hired to film and produce the video was caused by 508 compliance issues – which require that federal agencies ensure that persons with disabilities have comparable access to data as persons without disabilities, including video transcripts. If true, it would be sadly ironic, as the Committee has dedicated previous meetings to discussing best practices for eliminating 508 compliance concerns as a barrier to access.
To ensure that future FOIA Advisory Committee meetings are available to the public in real time, it appears that the best solution will be for members of the non-government Open Government community to attend future meetings and use their smart phones to film and broadcast them using Ustream or a similar app. Any volunteers to stream the January 19th meeting?
On to the substantive discussions of the Committee meeting:
One of the major discussions of the October 20 meeting focused on the Office of Management and Budget’s (OMB) FOIA Fee Guidance to all agencies on when and how they can charge fees. The Fee Guidance can be found in the Federal Register and dates from 1987 – well before the Internet Age and agencies’ ability to send FOIA responses via email rather than printed packets of documents sent via posted mail. The guidance is also missing a key word. As the fees subcommittee chairman Jim Hogan notes, the guidance states: “While the legislative history of the 1974 amendments to the Freedom of Information Act shows that the Congress did not intend that fees be erected as barriers to citizen access, it is quite clear that the Congress did intend that agencies recover [word missing] of their costs.” Is the key missing word “some”, “half,” “most”, or something else? Given the outdated and incomplete guidance, the Committee voted a formal “show of support” to recommend to the Archivist that he advise OMB to update its Fee Guidance. Language for this recommendation will be provided in advance of the January 19, 2016 meeting.Other highlights from the meeting include the fee subcommittee’s discussion of its survey results. The survey, which asked federal FOIA processors, among other things, what advantages or disadvantages would result from eliminating FOIA fees, was only given to government agencies (ostensibly because “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public). According to the subcommittee’s analysis of the results, “most employees surveyed think that the current fee structure is unfair and time consuming, and prefer a flat fee structure graduated based on volume of the request and category of the requester.” While this may likely be a good sign, some comments by government FOIA professionals implied –and in some cases outright stated– that FOIA fees were useful in deterring requesters from making requests, an action that is illegal.
Committee member and FOIA lawyer Dave Bahr noted that, given the impact of fee issues on requesters who are sometimes forced to withdraw their request or significantly narrow the scope of information they have the right to access, that “It’s very unfortunate that the bureaucratic barriers to asking the requester community are going to leave a very large void of information for the Committee to work with, because the process has been skewed to make it very easy for us to ask the internal FOIA staff their views.” Bahr also underscored that “Even though we’re recovering only 1 percent of the fees, or 1 percent of the cost of producing the information, none of that money, not a single penny is going back to the agencies. In effect, the agencies are spending staff time and money recovering fees that are going in the General Fund and not coming back to them. So it’s a net loss regardless of how much time the agency spends whenever they ask for fees and have to deal with fees.”
In an effort to provide a broader picture of FOIA fees as they affect all sides of the FOIA process, the National Security Archive and the Project on Government Oversight will soon distribute a similar, independent, unofficial survey to non-government FOIA stakeholders so that their views on FOIA fees can be cataloged and documented.
The oversight and accountability subcommittee also addressed the results of its survey to each federal agency’s FOIA public liaison (FPL), which was distributed with the goal of learning what individual FPLs do to fulfill their mandate to reduce FOIA delays, increase transparency, and resolve FOIA disputes. Survey respondents overwhelmingly noted that increased training and funding are necessary for improved FOIA performance. Unfortunately, 10 out of 100 agency FPLs did not respond to the Committee’s request for information – two of whom were even on the FOIA Advisory Committee. These omissions underscore not only how difficult it is to compel some agencies to engage in improving their FOIA administration, but also how necessary it is for the Committee itself to find a way to do more than advise on FOIA improvement.
The meeting also contained some discussion about the future of the Committee itself. The Committee’s current term expires in early 2016, and the lack of any major deliverables to date begs the question of whether the Committee will actually do anything to improve FOIA so that more documents are released more quickly to more people. And if not, what changes need to be made for it to do so if it is reconstituted in 2016?
Declassified Docs Show Reagan and H.W. Bush Sought Strong American Leadership on Climate Change, NSL Contents Revealed, and Much More: FRINFORMSUM 12/3/2015
The National Security Archive’s latest posting shows that Republican presidents Ronald Reagan and George H.W. Bush actively promoted measures to combat climate change in the 1980s in connection with the Montreal Protocol. Recently declassified records, posted as world leaders meet in Paris to discuss the latest round of climate talks, show that the two presidents shared a desire for strong American leadership on climate issues, with Reagan in 1987 overruling objections within his own Cabinet to a major proposed treaty to protect the ozone layer. Memos for senior State Department officials note that “Global climate change is the most far reaching environmental issue of our time” and that notwithstanding the need for continued research, “We simply cannot wait – the costs of inaction will be too high.” The Washington Post notes that “The assertive posture contrasts with the positions taken this week by leading Republican presidential contenders, several of whom publicly mocked Obama’s efforts to secure an international climate treaty in Paris.” A follow-up posting on the Clinton administration’s climate policies will be posted on the Archive’s website later this month.
Nicholas Merrill, who ran the small Internet company Calyx, has become the first person allowed to fully disclose the contents of a National Security Letter (NSL) he received from the FBI in 2004. (The Archive’s backgrounder on NSLs, which demand business records from a wide array of organizations for national security investigations and whose non-disclosure provisions prevent the full extent of the NSL program from becoming known, can be found here.) Thanks to a multi-year court battle Merrill’s gag order has been lifted, and reveals that in 2004 the FBI demanded Merrill “turn over all physical mail addresses, email addresses and Internet Protocol addresses associated with one customer’s account, as well as telephone and billing records and anything else considered to be an ‘electronic communications transactional record.’” The NSL also demanded cell-tower location data and any “screen names” or online nicknames associated with the customer in question.
In a worrisome move that has no statutory basis in the FOIA, the FBI’s new online FOIA portal requires requesters to upload a government-issued photo ID and limits requesters to making one request a day. The FOIA allows “any person” regardless of citizenship to make a records request, prompting Steven Aftergood, the director of the Federation of American Scientists, to say the bureau was going beyond the bounds of the law and making arbitrary filing requirements up “out of thin air” – ostensibly to discourage the filing of FOIA requests.
The State Department’s FOIA office redacted a 2013 list of Hillary Clinton’s “achievements” while secretary of state, citing FOIA’s “withhold it because you want to” exemption 5. The very dubious redaction is found among the State Department’s latest release of Hillary Clinton’s emails – nearly 8,000 pages – that were “sent directly to Hillary’s chief of staff by her spokesman, Philippe Reines.” The redaction is “especially curious since Clinton left office on February 1, 2013, just two days after Reines sent the ‘Achievements’ e-mail to Hillary’s chief of staff.” The latest release includes 328 documents “that are now deemed classified, bringing the total number of messages partially withheld on that basis to 999.”
The Second Circuit, in a recent panel opinion regarding the ACLU/New York Times FOIA lawsuit seeking OLC targeted killing documents, found that “the government did not waive its right to withhold a 2002 OLC legal opinion under FOIA Exemption 5 by making public statements on subjects related to the opinion more than eight years after it was written.” The ruling will keep much of the program secret, and, more broadly, “supports the argument that a waiver of Exemption 5 privileges for one document cannot be extended to other documents even if the documents are related, particularly when the statement constituting waiver occurs many years later.” As Brett Max Kaufman recently pointed out for Just Security, the Second Circuit’s decision is especially disappointing as last year it ordered the government to disclose key portions of a July 2010 OLC memo on the targeted killing of an American citizen in Yemen.
Five “friends of the court” have been appointed to serve as special non-governmental advisers to the Foreign Intelligence Surveillance Court (FISC), which, until now, has only heard arguments from the government. Under the USA Freedom Act, the five lawyers will offer “legal and or technical expertise” for any issue that the FISA court decides which “presents a novel or significant interpretation of the law.”
The USA Freedom Act also called for an end to the National Security Agency’s bulk collection of domestic phone records by November 28 and the creation of a new system that will require the government to obtain a court order to request information directly from phone companies. The Washington Post underscores, however, that “The act did not specifically require the government to purge the treasure trove of data amassed by the old program, although the government has indicated it planned to ‘cease’ accessing it.” It is unclear what will become of the previously collected data; Ellen Nakashima points out that the NSA is maintaining the historical phone data until February 29 for technical personnel to ensure the new system is working properly, and that the government remains “under a legal obligation to preserve the phone metadata it has collected until civil litigation regarding the program is resolved or the relevant courts relieve the NSA of such obligations.”
At least 20 inspector general investigations across the federal government – 14 at the Department of Justice alone – have been delayed or closed over “a long-simmering dispute between the Obama administration and its own watchdogs over the shrinking access of inspectors general to confidential records, according to records and interviews.” While the inspector general system – created in 1978 in the wake of the Watergate scandal – provides IGs with access to “all records”, a July opinion from the Justice Department’s Office of Legal Counsel argued “that some protected records, like grand jury transcripts, wiretap intercepts and financial credit reports, could be kept off limits to government investigators.” The Justice Department’s own inspector general, Michael Horowitz, says that thanks to the OLC opinion, “The bottom line is that we’re no longer independent,” and that DOJ IG investigations into the FBI’s use of “records collected by the National Security Agency, the government’s sharing of intelligence information before the 2013 Boston Marathon bombings, a notorious gun-tracing operation known as ‘Fast and Furious’” have been hindered as a result.
The Pentagon’s Inspector General, Jon Rymer, announced his resignation this week and his intention to return to the private sector. The DOD IG is currently investigating, among other things, reports that CENTCOM officers manipulated intelligence assessments about the campaign against ISIS and accusations that US officials ignored allegations of Afghan child abuse perpetrated by the US’s Afghan allies.
The House passed its fiscal year 2016 spending intelligence bill, voting for a measure that will both authorize a 7 percent increase in intelligence spending and “restrict the president’s privacy and civil liberties board from obtaining information about covert CIA operations.” The majority of the measure is classified and must be reconciled with the Senate bill.
This week’s #tbt pick is a 2009 posting on the challenges President Obama faced during the Copenhagen climate negotiations, and their parallels to the roadblocks Clinton faced a decade earlier during the Kyoto climate talks.
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JFK assassination records are likely the most frequently and prominently requested classified documents in the National Archives and Records Administration’s (NARA) possession. The Kennedy Assassination Records Collection Act of 1992 (JFK Act) requires that each assassination record be publicly disclosed in full by October 2017 – unless the President upholds an agency appeal and “certifies” that releasing a record would cause specific harm. The timing of the Act’s “final release date” has the potential to further affect election year politics in an election cycle already dominated by records retention, declassification, and state secrecy. This is also a timely opportunity to consider more broadly the Kennedy Assassination Records Review Board’s (the Board’s) recommendations to improve declassification practices of even the most sensitive government records.
The JFK Act of 1992 – spurred by renewed public interest in assassination records thanks to the success of Oliver Stones’ film, JFK – mandated that all federal records pertaining to JFK’s assassination be transmitted to NARA. The Act further required that each assassination record be publicly disclosed in full, and be available in the collection no later than the date 25 years after the enactment of the Act (October 26, 2017) unless the President certified that releasing the documents would cause “identifiable harm to the military defense, intelligence operations, law enforcement, or conduct of foreign relations” that outweighed the public interest in disclosure.
The Act also established the Kennedy Assassination Records Review Board (the Board), a temporary, independent agency consisting of five citizens who were not government employees but who had, for the first time in history, the “ability to order agencies to declassify government documents” and whose declassification decisions only the President could override. With its unique authority, the Board opened previously hidden CIA records from the CIA’s Directorate of Operations and FBI files that would have otherwise been protected by the FOIA’s broad law enforcement exemption. The Board also implemented a program requiring agencies sign a declaration, under penalty of perjury, that they were complying with the JFK Act.
In the 1990s the FBI was the only agency to appeal the Board’s decision to President Clinton, claiming that “the Board was directing them to declassify particular records that the FBI did not consider relevant. The Board effectively argued its case, the appeals were withdrawn, and the documents were released.” Somewhat surprisingly, the CIA never appealed any of the Board’s declassification decisions (although it did provide “inaccurate representations” concerning the relevance of records related to a deceased CIA agent named George Joannides).
As the Board itself noted, the Clinton administration “played a fairly low-key role. ‘Generally, the President just wanted people to cooperate,’ one interviewee said… Not unlike a parent coming up against sibling rivalry, the agencies ‘were told [by the Administration], ‘Work it out, because the President doesn’t want to touch this.’ A Board member mentioned that Chief of Staff John Podesta was ‘very supportive of our efforts — he never overruled the decisions of the Review Board.’ Fortunately for the Board the relationship with the Administration was smooth because ‘the wrong President could produce very different results. Clinton was very supportive, and interested in the work of the Review Board.’”
The Board’s work culminated in a collection of 318,866 Kennedy Assassination records — an estimated 5 million pages, and a wealth of insight into – and recommendations to improve – the declassification process, which are as timely now as they were when the Board delivered its final report in 1998. These recommendations include arguing “that any serious, sustained effort to declassify records requires congressional legislation with (a) a presumption of openness, (b) clear standards of access, (c) an enforceable review and appeals process, and (d) a budget appropriate to the scope of the task.” Both bipartisan Freedom of Information Act bills currently in the House (H.R 653) and the Senate (S 337) are a good start to fulfilling this nearly 20-year-old advice, and codify the presumption of openness, thereby requiring records be released, unless there is a foreseeable harm or legal requirement to withhold them.
The Board also addressed the cumbersome referral problem, a topic covered in many Archive op-eds (read here, here, and here for blogs by the Archive’s Nate Jones from this year alone bringing attention to this lumbering problem). The Board said – in 1998 – that the “time-consuming, and expensive problem of referrals for ‘third party equities’ (classified information of one agency appearing in a document of another) be streamlined by (a) requiring representatives of all agencies with interests in selected groups of records meet for joint declassification sessions, or (b) uniform substitute language be devised to deal with certain categories of recurring sensitive equities.”
Jefferson Morley, clarifying a slide presented by Martha Murphy, head of NARA’s Special Access Branch, on NDC prioritization earlier this year, reports that 1.1% from the total collection of JFK Assassination Records collection were withheld in full (3,603 individual records); and 11% were partially withheld, and these estimated 41,000 records withheld in full or in part are the records subject to the upcoming 2017 release. NARA is currently preparing for the release and notifying agencies that have equities in the remaining documents. Murphy recently stated that NARA has “sent letters to agencies letting them know we have records here that were withheld, 2017 is coming.” Murphy further noted that “while no agency has formally requested a waiver yet, some ‘have gotten back to ask for clarification’ and are seeking ‘more information.’” Murphy noted that while she couldn’t say whether or not the records would resolve the enduring sense of mystery surrounding the assassination, she said that the records will provide a “beautiful snapshot of Cold War America and the intelligence community.”
The appeals process for the 2017 release hasn’t been disclosed yet, but a good bet is that any appeal process would include the National Security Council. There may possibly be convincing arguments to keep some documents secret for “personally identifiable information,” including tax records or social security numbers of persons who are still alive. Court sealed documents including grand jury records could also pose difficult to release.
There are also, however, many other currently censored documents — including those initially withheld to protect law enforcement and CIA information — whose release should be and easy decision. Fifty years after the assassination and 25 years after the signing of the JFK Act, there is extremely little information that can harm US national security, or law enforcement actions; and almost none of this harm can conceivably outweigh the public interest of having access to documents of such an important incident.
Unfortunately, as absurd as it seems that CIA records and information that was compiled for law enforcement purposes in the 1960s should still be protected, those arguments will likely be made. The CIA successfully argued, after all, that releasing a 30-year-old volume of the CIA’s draft “official history” of the 1961 Bay of Pigs invasion would “confuse the public” — just imagine what concerns the agency has for public confusion surrounding the Kennedy Assassination. The likely reason for these specious arguments is the fact that many secretive federal agencies do not like public oversight of any of their activities, nor like having another executive agency force them to release documents the agencies mistakenly believe are “their own.” Fortunately for the public, the Kennedy Assassination Records Collection Act of 1992 has already largely set this precedent — for one narrow slice of documents.
If, then, agencies do appeal the release of any of the remaining 41,000 documents, will a lame-duck President Obama — or his successor — listen and help agencies keep the 50-year-old records secret? Hopefully not. And since it’s possible that the next president will determine the fate of the remaining secret JFK records — and that their stance on the records’ release may be a good tell on their views on openness and transparency — the media should start getting candidates on the record now.
The Office of Government Information Services (OGIS), the federal office created to facilitate the FOIA process, first began posting a sampling of its final response letters online in 2013. In the first two years of these OGIS postings, approximately thirty letters responding to requests for help resolving FOIA disputes were placed on the OGIS website. OGIS has dramatically increased the numbers of final response letters it has posted this year, however, and has already posted well over one hundred final response letters for fiscal year 2015 online. This rise in the number of posted response letters allows for a greater glimpse into the common problems encountered in the FOIA process, as well as several extremely useful lessons for requesters using FOIA in order to declassify and release government documents.
Several of OGIS’s final response letters answer requesters who contacted the office for help with issues that fall completely outside of OGIS’s jurisdiction. For instance, one response observes: “It appears that you seek assistance in researching your family history. Please know that OGIS’s mission is to review Federal agency compliance with the FOIA and….we are not able to assist you with researching your family history.” However, the response continues to suggest several helpful strategies to facilitate and expedite the requester’s search at the National Archives and Records Administration (NARA). Another requester asked OGIS to initiate a lawsuit on their behalf. Although this action lies outside the office’s purview, OGIS’s response contained information referring the respondent to the relevant statutes involved in initiating a FOIA lawsuit independently.
Others contacted OGIS because their FOIA requests had originally been denied or delayed due to imprecision in the filing process. One request was delayed for eight to ten months because many thousands of responsive pages required extensive review and redaction before they could be released. This demonstrates the importance of specificity and proper scope when filing FOIA requests. Another letter to OGIS objected to the prohibitively large estimated fees involved in an agency processing their FOIA request. The petitioned agency rejected the requester’s claim “to be treated as a representative of the news media for the purpose of fees.” OGIS’s response letter explained that it was “generally not sufficient to simply state that you belong in a fee category” and suggested the requester provide the agency with a publication contract if he or she wished to be considered a freelance journalist in order to qualify for a fee category.
Some letters answered by OGIS directly reflect the red tape and bureaucratic rigidity encountered by FOIA requesters. The Social Security Administration (SSA) rejected one requester’s attempt to obtain information about a deceased family member without proof that the person concerned was actually dead. Attempting to point out the absurdity of these grounds for rejection, the requester responded that their deceased family member would now be 114 years old if he or she were still alive. Another rejection from NARA’s Jimmy Carter Presidential Library and Museum in response to a separate request utilized the “Glomar” provision, which neither confirms nor denies the existence of the requested records. This provision is used to obfuscate when even the act of admitting the existence of a record could reveal a fact exempt under the provisions of FOIA.
Perhaps the most inflexible response to be found in this sampling of 2015 final response letters involves the appeal deadline of the U.S. Immigration and Customs Enforcement (ICE). In July, a FOIA appeal to ICE was rejected on the grounds that the deadline for processing an appeal had expired “well before” the receipt date. In fact, the deadline fell on a weekend and the appeal could not be delivered. Postal records revealed that the appeal was then delivered on the very first business day following this date. This behavior, documented and shared by OGIS, seems to show a FOIA office that is more concerned with closing out cases and improving reporting numbers than one striving to release as much information as possible to the public. Though the ICE FOIA office initially considered the appeal “untimely,” it eventually agreed to reopen and process the appeal after the requester enlisted OGIS’s help.
These final response letter examples posted to the OGIS website demonstrate many of the difficulties encountered by requesters, but they also reveal the potential effectiveness of OGIS and the appeals process. The drastically increased number of letters available online this year provides a number of useful lessons to those of us trying to utilize FOIA to declassify government documents. The OGIS website and its blog, The FOIA Ombudsman, contain a significant amount of other useful information for both requesters and processors. Hopefully this year’s rise in publicly available final response letters is only the beginning, and future years will continue to develop in this direction towards increased transparency and decreased FOIA mistakes.
ODNI Says Whistleblowers Comparable “Insider Threats” to Spies and Murderers, Suggests Anyone who Damages Agency Reputation Should Be Considered a Threat: FRINFORMSUM 11/19/2015
Exonerated whistleblower Thomas Drake – who helped shed light on the National Security Agency’s mass domestic surveillance practices in 2005 and who the government was forced to drop all 10 espionage-related charges against after he rejected a series of plea deals – is, according to the Office of the Director of National Intelligence’s National Insider Threat Task Force, a comparable threat to Ft. Hood and Navy Yard shooters Nidal Hasan and Aaron Alexis, respectively. The astounding leap was made earlier this week during a webinar entitled “Simple Steps and Guidance to Secure Classified Networks” and PowerPoint presentation given by ODNI official Patricia Larsen. The slide immediately preceding Drake’s un-ironically lists “Exonerated innocent individuals” as one of the many successes of the government’s insider threat programs.
The PowerPoint also lists Drake’s fellow whistleblower Edward Snowden as another dangerous insider threat. Earlier this week CIA director John Brennan lamented the constraints placed on spy agencies after Snowden’s leaks shed more light on the NSA’s bulk surveillance, and suggested that the leaks made it more difficult for law enforcement and intelligence agencies to detect and prevent the Paris attacks. Brennan’s comments were remarkably callous considering, among other things, that the perpetrators were already known to law enforcement, that indications are that their cell phones were unencrypted, that “the most consequential” restraint placed on spy agencies post-Snowden – terminating the bulk collection of the NSA’s phone data – hasn’t gone into effect yet, and “Nothing has changed since that revelation to restrict the NSA’s ability to sweep up communications exclusively among foreigners, as was apparently the case for the plot in France.” Brennan’s agenda-pushing comments were not, however, surprising, considering the spy chief is the same man who lied to the Senate Intelligence Committee about spying on Senate staff investigating the CIA’s torture program after accusing the Senate staff of inappropriately accessing CIA documents, and then cleared all senior agency officials of any wrongdoing.
Larsen also troublingly claimed during the insider threat webinar “that any employees and contractors who damage an entity’s reputation, be it government or business, by exposing inside information should be considered insider threats, as they ‘would be in the business world.’” The implication here is a chilling one to whistleblowers trying to shed light on agency wrongdoing. Other targets of the ODNI presentation include “anonymous dropbox services used by news organizations, like SecureDrop at the Washington Post, New Yorker, The Guardian, The Intercept and Gawker.”
The House Oversight Committee is asking Secret Service head Joseph Clancy to explain why his agency “appears to be trying to identify whistleblowers” while vowing to fix the problems the whistleblowers exposed. In a letter co-signed by Jason Chaffetz (R-Utah) and Elijah Cummings (D-Md.) the Committee reiterated that “Secret Service personnel — like all federal employees — have a constitutional right to communicate with Congress under the First Amendment, and it is against the law to deny or interfere with an employee’s right to furnish information to Congress”. Chaffetz called the Secret Service’s investigation to discover the whistleblower “highly inappropriate”, while Clancy defended the agency’s position, saying “Everyone knows whistleblowers perform an important function,” going on to say, “You gotta, uh, let them go.”
Video recoding of the FOIA Advisory Committee’s latest meeting, which was held on October 20, is still unavailable online. The unexplained delay makes it harder for stakeholders – with no way of knowing what was said at the meeting until a transcript of it was posted today, a month after the meeting has held – to promote the Committee’s efforts to improve and modernize FOIA administration. The Obama administration’s second Open Government National Action Plan expressly called the committee a FOIA Modernization Advisory Committee, making the Committee’s decision not to continue to take full advantage of inexpensive live-streaming devices that were used for its first few meetings sadly ironic. It is unclear why this practice of live-streaming the meetings was abandoned in favor of posting footage and transcripts (weeks? months?) later, although one theory is that 508 compliance requirements — making government documents as accessible to those with disabilities as those without — factored in the delay (which, if true, would further call into question the Committee’s commitment to its mandate to utilize technology to modernize FOIA). What is clear, however, is that the open government community would be better served having its own representatives recording the next meeting to help ensure we have prompt (real time) access to what is going on at these public meetings. The Office of Government Information Services, OGIS, the FOIA ombuds that provides funding and administrative support for the Committee, has said that the video will be posted soon, but offered no firm dates. Unredacted will post an assessment of the meeting as soon as the video is available. Any open government interns volunteer to stream the next meeting on their iPhone?
Adam Marshall of Reporters Committee for the Freedom of the Press has published an excellent rundown of the “release to one, release to all” pilot program for FOIA-released records, which seven agencies are taking part in. The Archive’s Nate Jones notes that the results of the pilot program three months in allay concerns from journalists that they would get “scooped” if agencies posted their FOIA requested-records to them and the public at the same time, noting that the documents are hidden in plain sight. USA Today’s Brad Heath also said he hasn’t noticed an impact on his journalistic abilities, but said before you can “release to one, release to all, you have to release to one.”
The Supreme Court will not hear New Hampshire Right to Life v. Department of Health and Human Services, No. 14-1273, a case seeking Planned Parenthood records sent to HHS for grant money “as well as internal HHS documents describing its plan to go ahead with the grants” under the FOIA. SCOTUS’s decision means that the United States Court of Appeals for the First Circuit’s decision, that the documents were protected by FOIA’s Exemption 4 concerning records containing “trade secrets and commercial or financial information obtained from a person and privileged or confidential,” stands. Justices Clarence Thomas and Antonin Scalia “dissented, saying disagreements in the lower courts over the scope of the open records law, the Freedom of Information Act, warranted Supreme Court review.” The plaintiff also asked the Court to clarify Exemption 5, “which exempts from disclosure intra-agency memos or letters which would not be available if sought in a civil case in federal court. The dissenters did not discuss that challenge.”
A report released this week by the Department of Justice found that black Americans are twice as likely “to experience nonfatal force or the threat of force from police” (the study defines non-fatal use of force as anything from shouting, cursing, to using tazers or pointing a gun). While interesting and timely on its own, data-journalists may be especially interested to know that the report was based entirely on data collected by the Bureau of Justice Statistics’ Police-Public Contact Survey (PPCS). The Bureau of Justice Statistics is a component of the DOJ whose website houses a wealth of data on courts, crimes, and law enforcement and is worth a visit by data-hounds.
The U.S. Citizenship and Immigration Service (USCIS) has one electronic form to show for its four-year, $3.1 billion effort “to replace its antiquated approach to managing immigration with a system of digitized records, online applications and a full suite of nearly 100 electronic forms.” The Washington Post reported that the program was mismanaged from the outset, and that as early as 2012 officials at USCIS’ parent agency, the Department of Homeland Security (DHS), “were aware that the project was riddled with hundreds of critical software and other defects. But the agency nonetheless began to roll it out, in part because of pressure from Obama administration officials who considered it vital for their plans to overhaul the nation’s immigration policies, according to the internal documents and interviews.”
The number of secrecy orders in effect at the end of fiscal year 2015 is 5,579 – the most in a decade. Most of these orders, which are placed on patent applications if the government believes that “granting the patent and publishing it would be ‘detrimental’ to national security,” are renewals of previously granted secrecy orders. Steven Aftergood noted that a FOIA request to the US Patent and Trademark Office showed that there were only “95 new secrecy orders imposed last year, while 36 prior orders were rescinded.” Three of the newly rescinded orders have been identified thanks to a FOIA request sent to the USPTO; these are:
“Patent Number 9057604: Point-ahead laser pointer-tracker systems with wavefront correction in both transmit and receive directions. Filed in April 1989, the patent application was finally granted in June 2015.
Patent Number 9115993: Fused PM fiber single-polarization resonator. It was filed in August 1990 and granted in August 2015.
Patent Number 9181140: Solid propellant bonding agents and methods for their use. It was filed in December 1993 and granted in November 2015.”
This week’s #tbt document pick is a 2001 posting on President Richard Nixon’s decision to halt the US biological warfare program, a posting that includes the official history of the Army’s activities in the US biological weapons program.
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A British report entitled “The Detection of Soviet Preparations for War Against NATO” was the first comprehensive report that warned that a November 1983 nuclear release exercise called Able Archer 83 could have spooked the Soviets into a preemptive nuclear attack against the West. Within weeks, a First Tier British tribunal on Information Rights will decide if this key 32-year-old report will be released to the public or will remain censored by the Cabinet Office for the foreseeable future.
As has been widely reported, the British FOIA law is under attack. MP Chris Grayling has alleged that journalists “misuse” the Freedom of Information Act to create stories. (Here are 103 stories that journalists utilized the British FOIA to write, presumably “correctly.”) More threateningly, a British government commission has been created “to consider new restrictions to the [Freedom of Information] Act.” According to The Guardian, the five-member commission is composed of “Jack Straw, the former foreign secretary, who is already on the record calling for the act to be rewritten; Lord Carlile of Berriew, who accused the Guardian of ‘a criminal act’ when it published stories using National Security Agency material leaked by Edward Snowden; Lord Howard, whose gardening expenses were criticised after being exposed following FoI requests; and Dame Patricia Hodgson, the deputy chair of Ofcom, which has criticised the act for its ‘chilling effect’ on government.”
But even without the law’s pending wing-clipping, the British Cabinet Office (the office responsible for supporting the Prime Minister) is arguing that a 32-year-old report of an historic event of immense public interest should be withheld –without even being reviewed– forever.
The report, entitled “The Detection of Soviet Preparations for War Against NATO” and written in early 1984, describes an “unprecedented Soviet reaction to Able Archer 83,” a realistic NATO nuclear release drill. After the British warned the United States of this danger, US intelligence reported “a high level of Soviet military activity, with new deployments of weapons and strike forces.” CIA Director William Casey warned President Ronald Reagan and other cabinet officials of the “dimension of genuineness” and “high military costs” of the Soviet actions.
The United States’ comprehensive, all source intelligence report on the War Scare, entitled “The Soviet ‘War Scare'” was finally declassified last month, after a twelve-year fight by the National Security Archive. It concluded that the West “may have inadvertently placed our relations with the Soviet Union on a hair trigger;” that President Reagan was “given assessments of Soviet attitudes and actions that understated the risks to the United States;” and that the report’s authors hoped their report would prompt “renewed interest, vigorous dialogue, and rigorous analyses of the [War Scare].”
So what is the British Cabinet Office so afraid of?
It’s not at all clear. At first, the Cabinet Office cited three exemptions (23 – information supplied by some security bodies, 24 – “national security,” and 27 – “international relations” ) to prevent the historic report’s release. Months later, the Cabinet Office stated that it had turned course, and would review the document to determine if “some of the disputed information could be disclosed.” But then the Cabinet Office reversed itself again, declaring –without reviewing the document as it had previously pledged– that the entire document was categorically exempted under exemption 23; for some undeclared reason, the Office abandoned its use of exemptions 24 and 27.
The British Information Commissioner, Christopher Graham, nominated in 2009 and charged to oversee the Freedom of Information Act, has rubber-stamped the Cabinet Office’s claims –without reading the 32-year-old document for himself.
This means that the last best chance for the release of “The Detection of Soviet Preparations for War Against NATO” is the First-tier Tribunal for Information Rights.
Here is the Archive’s complete argument to the tribunal, which:
*includes an overview of the plethora of documents already released about the incident, including British Ministry of Defense documents, documents about the US role, such as the officially released photographs of the spy who helped reveal the danger, Oleg Gordievsky, meeting with President Reagan, and the declassified US “TOP SECRET UMBRA GAMMA WNINTEL NOFORN NOCONTRACT ORCON” comprehensive report of the danger, which in all likelihood discloses the majority of secrets in the JIC report that the Cabinet Office is foolishly attempting to protect;
*presents a timeline showing that the Cabinet Office repeatedly missed the deadlines set by the tribunal, and made promises to review the document for a partial release –which it reneged upon;
*and makes the technically important argument that much in “The Detection of Soviet Preparations for War Against NATO” is derived from ministries –including Defence and Foreign Affairs– which are not categorically exempt from the British FOIA. In fact, the Joint Intelligence Committee –which produced the report in question– has already produced one official history, and is working on its second. The JIC has also released other reports of much more recent and sensitive topics, including UK intelligence on the Assad Regime’s use of chemical weapons in Syria. There is no reason why this report from 1984, cannot be reviewed, redacted if necessary, and released to the public.
And as we were going to press, we learned that the issue of the unnecessary secrecy still surrounding the 1983 War Scare has now reached Parliament. (We were alerted by Peter Burt of the Nuclear Information Service, which has done more than any other organization for the release of British documents on Able Archer 83.) On November 10, Paul Flynn representing Newport West asked two questions. The answers he received on November 17 were disappointing.
Q1: To ask the Secretary of State for Defence, whether the Government has been provided with a copy of the US President’s Foreign Intelligence Advisory Board report of 15 February 1990, entitled The Soviet ‘War Scare’, by the US administration.
A1 (Penny Mordaunt): The document referred to by the hon. Member is available in redacted version over the internet. This Department has no record of receiving a copy from the United States administration.
Q2: To ask the Minister for the Cabinet Office, if he will place in the Library a copy of the 1984 Joint Intelligence Committee paper JIC(84)(N)45, entitled Soviet Union: concern about a surprise NATO attack.
A2: (Mr Oliver Letwin): It would not be appropriate to release this report on grounds of National Security.
That the US did not share its comprehensive PFIAB report with the British, despite it being based largely on information shared by the British is a bit of a revelation. (Though, it was classified “NOFORN.”)
That a representative for the Cabinet Office would simply claim “National Security” to reject the request of a Member of Parliament to release a 32-year-0ld historically important document to the public exposes the callous, poor judgement of the Cabinet Office.
Despite the Cabinet Office’s refusal to release the record, the fact that a Member of Parliament has requested a copy of the document does demonstrate to the Tribunal that there is a large public interest in the record, and that the Tribunal should consider its release.
The National Security Archive is hopeful that the Tribunal will force an actual review of the document and release the portions which will not harm the national security of the United Kingdom (likely the majority). But we are also extremely disappointed that it has come to this. The British Cabinet Office and Information Commissioner of the nation that created the vaunted “Twenty Year Rule” should not be arguing to withhold a key 32-year-old historic document about one of the most important nuclear episodes in our history without a review.
It’s sadly ironic that the government which first alerted the US to the potential nuclear danger of Able Archer 83 is now leading in its concealment.