FOIA Reform Awaits President’s Signature, CIA Releases Some Torture Records while Preservation of Full Torture Report Remains in Limbo, and More: FRINFORMSUM 6/16/2016
Agencies will no longer be able to withhold historical documents – like the CIA’s history of the Bay of Pigs invasion – under FOIA’s expansive 5th exemption when the President signs the FOIA reform bill passed by Congress earlier this week. The bill (S. 337) was introduced by Senators John Cornyn, Chuck Grassley, and Patrick Leahy in the Senate, and was supported by Representatives Jason Chaffetz and Elijah Cummings in the House. (Toby McIntosh of FreedomInfo.org and Daniel Schuman have good write-ups on the bill, what made it in the final version, and the four-year struggle to make its passage a reality.)
The bill reflects many of the findings of the National Security Archive’s FOIA audits and litigation and is on its way to the President’s desk – and the White House has indicated the President will sign it.
Archive audits going back to 2009 show that most federal agencies have continued to ignore President Obama’s “presumption of disclosure” guidance that he issued on his first day in office. The new bill codifies this presumption, thereby requiring that records be released unless there is a foreseeable harm or legal requirement to withhold them.
A 2014 National Security Archive audit found that too many federal agencies have not updated their FOIA regulations to comply with the 2007 Open Government FOIA improvements. By neglecting to update their “FOIA handbooks,” agencies are essentially ignoring Congress’s FOIA reforms. The new bill requires all agencies update their regulations within 180 days of the laws passage, including the new statutory language.
The Archive’s lawsuits against the CIA and the State Department exposed those agencies’ practice of denying public access to historical documents (like the internal history of the Bay of Pigs disaster, and the telephone transcripts typed up by Henry Kissinger’s secretaries) by invoking FOIA’s “withhold it because you want to” exemption 5, on the grounds that their release would “chill” the official deliberative process. Neither the State Department nor the CIA claimed there was still classified information in those 30- and 40-year-old records, but relied instead on an over-broad reading of the exemption. The new FOIA bill mandates a 25-year sunset on the deliberative exemption and will curtail such senseless secrecy.
Of course, as FOIA advocates learned last session, the passage of FOIA reform in both the House and Senate does not guarantee that the bill will become law. As such, the Archive and a broad coalition of other Open Government groups have mounted a wide-ranging campaign to celebrate FOIA’s upcoming 50th birthday on July 4, 2016, to help argue that the law needs to be reformed by then.
The National Security Archive this week highlighted 50 of the year’s biggest news stories made possible by FOIA. The diverse front-page news shows how FOIA can impact human rights, government accountability, and even what you eat. Here is a sampling of this year’s top stories:
- FOIA releases to the National Security Archive provided critical evidence in the historic conviction of 14 Argentine military officers and 1 Uruguayan military officer for their participation in the Operation Condor international murder ring and were cited 150 times by the prosecution.
- Documents released through FOIA proved Pentagon officials deliberately misled Congress on the Defense Department’s handling of sexual assault cases in order to undermine reform legislation.
- Documents released by the Food and Drug Administration under FOIA show that cheese marketed as being“100% parmesan” contained 0% parmesan – and some wood pulp.
- Government audits freed by a FOIA lawsuit show widespread billing mistakes – primarily overcharging – in Medicare Advantage program.
The CIA’s recent release of documents on its torture program in response to ongoing FOIA lawsuits also represents significant FOIA victories. In response to an ACLU FOIA suit, the agency this week disclosed detainee transcripts describing the torture program, adding “first-person testimony to the growing historical record.” The CIA also released 50 documents this week in an overlapping FOIA lawsuit brought by Vice News’s Jason Leopold; the heavily-redacted documents reveal the graphic conditions that led to the 2002 death of detainee Gul Rahman at a CIA black site prison in Afghanistan. The releases are a step in the right direction, even as the National Archives and Records Administration continues to defer to the Justice Department’s dubious guidance and refused to use its authority to call the Senate Intelligence Committee’s report on the CIA’s torture program a federal record.The Public Interest Declassification Board’s Sanford Ungar decried expanding rates of government secrecy and the National Archives’ lack of preparation for an exponentially-growing backlog in a recent Washington Post opinion piece. On the backlog rates at the Presidential Libraries in particular, Ungar says that NARA is “out of space to store the paper records and cannot possibly review them fast enough to make room for all the new ones.” He goes on to say that, “‘Review’ here is a euphemism for an often-tortuous process in which overtaxed declassification experts from various federal agencies painstakingly go over documents line by line to determine what can be made public without posing a national security risk.”
In its December 2014 report the Public Interest Declassification Board wrote that the National Declassification Center must understand that “clinging to manually-intensive [referral] processes diverts increasing dwindling resources …There must be an understanding and agreement that the current practice of having one, two or more persons conduct a laborious page-by-page declassification assessment for each record under review is an unsustainable practice.” Ungar reiterates that sentiment in his Post piece, and urges the National Declassification Center to abandon its “factory” approach to declassification and embrace electronic declassification of sensitive documents.
In a recent posting on the Senate Intelligence Committee’s adoption of the Fundamental Classification Guidance Review, Steve Aftergood notes that, because of uncommonly assertive reporting requirements, “the bill would reset the terms of the congressional intelligence oversight relationship, seemingly dispensing with comity and imposing mandatory disclosure to Congress of various categories of records.” Specific reporting requirements highlighted by Aftergood include expectations that the Privacy and Civil Liberties Oversight Board keep SSCI informed of all the Board’s activities, the submission of copies “of all memoranda of understanding between U.S. intelligence agencies,” and “notification of all classified and unclassified presidential directives to intelligence agencies, and their implementation.”
A federal judge has blocked the city of Seattle from releasing information sought by a public records request on the location of surveillance cameras the FBI had placed around the city, citing the government’s argument that doing so could jeopardize national security. The FBI has also stopped sharing information about its use of the cameras with the city’s public utility, Seattle City Light, “because of possibility the city will make the information public.”
The Office of the Director of National Intelligence (ODNI) recently released a report revealing that the intelligence community (IC) workforce is less diverse than both the federal workforce and the overall US workforce. In its announcement of the release – which is the first time the ODNI has publicly released its demographics – ODNI admits the IC struggles “to recruit talented officers who mirror the diverse country they serve,” going on to say, “Despite significant efforts, the IC [intelligence community] has not substantially increased the number of minority employees over time.”
Government Attic posted Harry Markopolos’s March 13, 2014, presentation before the Council of Inspectors General on Financial Oversight meeting on the detection of the Bernie Madoff’s Ponzi scheme and the failure of the Securities and Exchange Commission to take action. The presentation was released thanks to FOIA.
The Department of Health and Human Services is proposing to revise its FOIA regulations and comments are due by August 15, 2016. The proposed changes look – for the most part – pretty good, and include language allowing the department to waive fees as a matter of discretion. The regulations do not, however, reflect the D.C. Circuit Court of Appeals recent ruling that students are entitled to the same FOIA fee considerations as teachers. Thanks to Adam Marshall at the Reporters Committee for the Freedom of the Press for pointing out the proposed regulations.This week’s #tbt pick is the Archive’s 2007 posting on the George Polk case, and how the CIA lost documents concerning its investigation of the mysterious 1948 murder of the CBS reporter and destroyed its file on FOIA requests for Polk documents.
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Ed. note: This article has been crossposted from FreedomInfo.org
By Toby McIntosh
Reforms are coming to the US Freedom of Information Act.
The House on June 13 approved a Senate bill to amend FOIA and President Obama will sign it, the White House said.
The bill writes into law a specific presumption of openness, strengthens the FOIA ombudsman, puts a time limit on the use of the deliberative process exemption and mandates more proactive openness, among other things.
Getting any legislation through Congress currently is nearly impossible, so the passage of the FOIA amendments without objection ranks as an unusual occurrence.
Achieving the bipartisan unanimity necessary to avoid killer roadblocks, however, came at a price. The final product was somewhat weakened over the course of the four-year campaign for its passage and doesn’t include even some relatively innocuous provisions from the House bill, such as requiring every agency to accept FOIA requests by email.
“… a lot of things” were not included in the final product, said Rep. Darrell Issa, a Republican from California and a leading sponsor of the bill, during the House debate, concluding, “I don’t want to belabor the point, but when this bill becomes law and is signed by the President, there will be enough left for a new bill to start again.” Rep. Elijah Cummings, a Maryland Democrat, noted the email provision during the floor debate, saying, “This is a simple improvement that every agency should adopt, and I look forward to working with Chairman [Jason] Chaffetz [R-Utah] in the years ahead on such commonsense reforms.”
Congressional sources said it is too soon to discuss strategy, which could include attaching the orphan provisions to other legislation.
Variety of Reforms Enacted
The key provisions passed would:
- codify the “presumption of openness” so as to require that records be released unless the agency “reasonably foresees that disclosure would harm an interest protected by an exemption” or if disclosure is disclosure is prohibited by law. This language mirrors the Obama administration’s and the Department of Justice’s(nonbinding) instructions on FOIA.
- limit to a period of 25 years the ability of agencies to keep internal deliberations confidential under exemption (b)(5), an exemption that currently has no time limit and was recently used to successfully deny a CIA draft history of the 53-year-old Bay of Pigs invasion.
- mandate that the government create a “central online request portal.”
- prohibit agencies from assessing search or duplication fees when the agency fails to meet the notice requirements and time limits set by existing law, unless a request is considered voluminous (more than 5,000 pages).
- require agencies to update their FOIA regulations within 180 days after the passage of the bill.
- strengthen the Office of Government Information Services (OGIS), the FOIA ombudsman, by giving OGIS the authority to report directly to Congress and provide legislative recommendations without approval from other executive branch agencies.
- require agencies to publish material that has or might “become the subject of subsequent requests for substantially the same records” or if the information has been requested three or more times.
- require agencies to make FOIA guidance and FOIA reports available for public inspection in an electronic format.
- establish a Chief FOIA Officers Council charged with developing initiatives to increase transparency and compliance with FOIA and more fully define the role of Chief FOIA officers.
- require agencies to notify requestors of the right to seek assistance from the FOIA Public Liaison for the responding agency and the right of a requestor to seek dispute resolution services. OGIS “shall offer mediation services to resolve disputes between persons making requests under this section and administrative agencies as a nonexclusive alternative to litigation and may issue advisory opinions at the discretion of the Office or upon request of any party to a dispute.”
Consolidated Request Portal Mandate
The bill mandates “the operation of a consolidated online request portal that allows a member of the public to submit a request for records under to any agency … from a single website” and gives the implementation responsibility for this to the Office of Management and Budget.
The provision does not appear to mandate a unified request system and opinions about its meaning vary.
A related clause says, “This subsection shall not be construed to alter the power of any other agency to create or maintain an independent online portal for the submission of a request for records under this section. “It says OMB “shall establish standards for interoperability between the portal required under paragraph (1) and other request processing software used by agencies subject to this section.”
A website run by the Justice Department portal already lists the FOI websites of federal agencies,FOIA.gov. Efforts to plan a new such site, openFOIA, have not materialized. FOIAOnline is a government-created site with 12 voluntarily participating departments.
The operating software for FOIA processing is provided both by the private sector and by government-developed systems. Commercial providers lobbied against a combined national site based on FOIAOnline.
House Intelligence Exemptions Not Included
Senate strategists were aiming to achieve 100 percent support for their bill in a body where even one objecting senator can easily block action. Senate sponsors fearing that pushing the House bill, or even adding provisions from it, would create problems. One key argument was to remind senators that they had all voted for the Senate bill.
(The differences between the House and Senate FOIA reform bills were analyzed and charted by Wendy Ginsburg of the Library of Congress Congressional Research Service and explained by Nate Jones of the National Security Archive.)
By adopting the Senate bill, the House effectively conceded on a provision of its bill that would have prohibited disclosure of records that “would adversely affect intelligence sources and methods.”
Critics had called the language vague. They also said that a FOIA exemption now exists for properly classified material and that are a number of other federal laws prevent disclosure of intelligence sources and methods.
Changes Made as Bill Advanced
For the most part, however, the House bill included provisions that pro-transparency advocates would have liked to see passed.
One key difference was in the House language defining the presumption of disclosure. The House added a different twist by also requiring that information could be withheld only if an agency foresaw that disclosure would “cause specific identifiable harm to an interest protected” by an exemption.
The so-called specific harm test was opposed quietly by the Justice Department and financial regulatory agencies. (See FreedomInfo.org post mortem on the failure of the 2104 bill and a laterstory on 2015 disclosures about DOJ’s position.)
During the course of Senate development of the bill, the scope of the 25-year sunset provision concerning material exempted through the use of the deliberative process exemption b(5) was diminished. The 25-year sunset applies to the “deliberative process” privilege of Exemption Five (which covers drafts, and communications including emails and memos), but not to the attorney-client privilege and attorney work product privileges.
An early goal on deliberative process championed by FOI reformers was lost in 2014 when the Senate Judiciary Committee cut a so-called “public interest balancing test.” (See previous FreedomInfo.org report.)
House Provisions Not in Senate Bill
More than a dozen items in the House bill were not contained in the Senate bill and so were not adopted. These include provisions that would have:
- required the court to assess “reasonable attorney fees and other litigation costs” against the U.S. government in cases when a complainant prevails in a FOIA lawsuit.
- Authorized applicable federal inspectors general to review agency compliance with FOIA, make recommendations to their respective agency heads, and recommend adverse action to the agency head if needed.
- required agencies to assign a tracking number to all requests and establish an automated system that would allow requestors to check the status of their request. Under current law, tracking numbers are only assigned to requests that will take longer than 10 days to process.
- required agencies to provide a name, phone number, and email address of an agency employee who can provide information on the status of each request received by the agency.
- required the agency to notify a requester in cases when the agency consults with another agency or outside entity that has a substantial interest in the requested record and to describe the consultation process.
- required agencies to provide “a detailed explanation” of assessed FOIA administration fees,
- prevented the withholding of opinions that are controlling interpretations of law, final reports or memoranda created by an entity other than the agency that the agency used to make a final policy decision, guidance documents used by the agency to respond to the public.
- clarified that the name and position of any employee “responsible for the denial or partial denial” or responsive records should be included in the requester’s notification of denial.
- clarifed Exemption 6 which allows agencies to withhold records that would “constitute a clearly unwarranted invasion of privacy” if released. The provision would clarify that “personal information such as contact information or financial information” can be appropriately withheld.
- stated that releasing the name of a federal employee engaged in an official duty would not constitute an invasion of personal privacy.
- required an agency that denies a records request to provide the requester a list of the records that were withheld, unless provision of such a list is prohibited by law.
- required agencies to report and justify to the Department of Justice each case in which they determine that “disclosure of the existence of the records could reasonably be expected to interfere” with law enforcement proceedings or could identify a confidential informant.
- required the Government Accountability Office (GAO) to conduct audits of individual agencies’ FOIA practices, catalog the use of Exemption 3, and review and prepare a report on FOIA requests by agencies pertaining to entities that received assistance under Title 1 of the Emergency Economic Stabilization Act of 2008.
- required GAO to study at least five agencies “to assess the feasibility of implementing a policy requiring noncustodians to search for records” responsive to a FOIA request.
- require agencies to ensure all employees receiveannual training on their FOIA-related responsibilities.
- required agencies to report any violation of FOIA laws or regulations to the affiliated agency inspector general.
- Made employees found to have intentionally violated a FOIA law or regulation would subject to the suspension and removal provisions of Title 5.
Changes Precede 50th Anniversary of Law
The last amendments to the FOIA came in 2007. A history of the law, along with examples of 50 recent FOIA success stories, has been posted by the National Security Archive, the sponsor of FreedomInfo.org.
The FOIA reforms were advocated by groups including the broad Fix FOIA by 50 coalition, whose name references initial passage of the FOIA on July 4, 1966.
A press release by the Sunshine in Government Initiative said:
“These FOIA reforms are a high-water mark for FOIA,” said Rick Blum, director of the coalition. “These changes will ensure future administrations respond to FOIA requests from a presumption of disclosure. Just as important, the bill also gives the FOIA Ombudsman the independence it needs to mediate FOIA disputes and make unflinching recommendations to Congress and the President on ways that agencies can improve their FOIA responses.”
A statement by Patrice McDermott, Executive Director of OpenTheGovernment.org said: “This reform bill is the result of tremendous efforts on the part of our colleagues in the FOIA community, and, especially, our allies in Congress in charge of conducting FOIA oversight: House Oversight and Government Reform Committee Chairman Jason Chaffetz and Ranking Member Elijah Cummings; and Senate Judiciary Committee Chairman Charles Grassley, Ranking Member Patrick Leahy, and Senator John Cornyn – and their indomitable staffs.”
After this legislation becomes law, it is my hope that the House Oversight and Government Reform Committee and Senate Judiciary Committee continue to work together to push additional reform to FOIA and federal transparency. In particular, the administration’s abusive claims around privileged information begs for resolution in a more equitable way. In addition, with the Justice Department’s key role in undermining the FOIA bill and promulgating regressive FOIA regulations, it is a worthy target of granular congressional oversight. But for now, it is important to celebrate a hard-fought victory.
Although the bill is a positive step forward, it falls short of fixing some of FOIA’s biggest problems, including agency delay and stonewalling. EFF has previously called on Congress to provide more resources – both technical and financial – to speed up agency processing of FOIA requests. We think those incentives should be combined with penalties for agencies that do not meet deadlines or for personnel who actively thwart disclosure.
We’ve argued for big changes to the law that would mandate disclosure of records in close cases – the public interest in disclosure should outweigh secrecy. We’ve also argued for small changes, including adding a comma to make controversial law enforcement techniques more public and a requirement that all agencies accept FOIA requests via email.
Tom Blanton, the National Security Archive’s Executive Director, recently told a packed house at Columbia School of Journalism’s FOIA @ 50 conference that FOIA releases to the Archive on Operation Condor – a coordinated, cross-border system of repression implemented by right-wing Southern Cone dictatorships – have had “enormous human consequences,” including playing a significant role in the recent sentencing of 18 Argentine military officers for their participation in the operation. Blanton cited a June 10, 1976, memcon showing that Secretary of State Henry Kissinger told Argentine Foreign Minister Admiral Cesar Augusto Guzzetti, amidst vast human rights violations by Argentina’s security forces in June 1976,”If there are things that have to be done, you should do them quickly. But you should get back quickly to normal procedures,” as an example of how FOIA can play a key role in advancing, among other things, human rights causes. Blanton was one of the event’s three keynote speakers, along with Melanie Pustay, Director of the Justice Department’s Office of Information Policy (OIP), and former White House Office of Information and Regulatory Affairs Administrator, Cass Sunstein.
In his speech, video of which begins around the 50’ mark, Blanton notes that as FOIA approaches its 50th birthday this July 4, it is in a Dickens-esque predicament of simultaneously experiencing the best of times and the worst of times. Operation Condor convictions – thanks in no small part to the 900 declassified records the Archive gave the prosecution, many of which provided critical evidence for the proceedings – is one of the many highlights of the FOIA. Lowlights include the Freedom of Information Act’s middling global ranking (a recent poll by Canada’s Center for Law and Democracy ranked FOIA 45 out of 103 transparency laws, in part because the law doesn’t have a public interest harm test built in), and attacks on the statute here at home – by Cass Sunstein and others – who argue that the government is too open.
Sunstein (video begins a round the 6’ mark) promoted the importance of increased output transparency (roughly defined as regulatory information people can use in their daily lives), while arguing that input transparency (roughly defined as policy discussions) is less important, and even potentially harmful. Sunstein remarked that input transparency is “often a bad idea, certainly isn’t a great idea.” Blanton pointed out, however, that Kissinger’s memcons, including the Guzzetti memo, were a prime example of why “input transparency” is so important, and why there ought to be much more of it – not less.
Melanie Pustay (begins around the 4’42’00 mark) repeated the Justice Department’s oft-touted trumped-up claims that the government continues to maintain a high FOIA release rate of over 91% – and has done so in each fiscal year since 2009. This is a misleading figure. As Blanton noted in his 2015 Senate testimony, to calculate that 91% 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 closer to 60%.
OIP’s insistence on repeating the same, misleading statistics is part of the reason Rep. Jason Chaffetz (R-Utah), chair of the House Committee on Government Oversight and Reform, said Pustay must be living in “la-la-land” if she thought FOIA was being properly implemented during last year’s hearing on “Ensuring Transparency through the Freedom of Information Act.”
Pustay also said that while OIP is participating in FOIAonline, a portal that allows you to submit FOIA requests to all participating agencies and currently has 13 participants, it is not pushing other agencies to join. Pustay pointed to legacy request tracking systems many agencies are already committed to, and problems supporting classified documents, as reasons why agency participation is limited thus far.
This week the National Security Archive has been sharing some especially egregious FOIA horror stories to help celebrate 50 Days of FOIA, a campaign organized by OpenTheGovernment.org to count down the days to the FOIA’s 50th anniversary this July 4 and to draw attention to “meaningful reform legislation that now has the potential to become law by the time the statute turns 50 in less than two months.” To kick the week off, Nate Jones authored a must-read blog recounting the all-too-common tale of a FOIA request that was swallowed up by the referral black hole. In this case, court-mandated status reports gave us a glimpse into what happened to our request: lowlights include referrals to nine different agencies, one of whom couldn’t meet its appeal deadline because “it was having difficulty determining what needed to be reviewed.” Follow Reporters Committee for Freedom of the Press @RCFP next week for their 50 Days of FOIA stories on FOIA resources.
Jason Leopold recently published declassified CIA reports obtained through a FOIA lawsuit that contain new details on the death of Afghan detainee Gul Rahman, who died in November 2002 after being “short shackled” overnight, and “likely” freezing to death – a technique the CIA implemented after flying a Bureau of Prison training team to Afghanistan. Rahman is the “only documented death associated with the CIA’s torture program” and the declassified documents, in addition to containing new information on his death, “make clear that congressional committee leaders on both sides of the aisle were aware as early as January 2003 that the CIA operated an abusive interrogation program that resulted in the death of a detainee, and that the agency ran black site facilities where captives were held incommunicado.”
In April the Bureau of Prisons (BOP) told the ACLU that it had no records in response to the ACLU’s FOIA request for records on BOP officials’ visit to the CIA detention site. The BOP made this outrageous claim even though “A U.S. Senate report revealed the Bureau of Prisons said the CIA site was ‘not inhumane,’ adding that the visiting team was ‘wowed’ by the level of sensory deprivation the CIA achieved against suspects.” The ACLU is filing a FOIA lawsuit to compel the release of documents that, in all likelihood, do exist.
Jason Leopold, Marcy Wheeler, and Ky Henderson recently penned a very worthwhile long read on hundreds of internal National Security Agency (NSA) documents on Edward Snowden and his attempts to raise concerns inside the NSA about its surveillance practices prior to his leak. The 800 pages of documents were obtained through a FOIA lawsuit. As the authors note, perhaps the most remarkable takeaway from “this FOIA release, however, is that the NSA admitted it removed the metadata in emails related to its discussions about Snowden.” Marcy Wheeler at Empty Wheel has more on that here.
The New York appellate court has, for the first time, upheld the NYPD’s use of the Glomar doctrine in response to a records request for records on surveillance on two Muslim men. CJ Ciaramella reported on the significant decision in his latest FOIA Rundown, noting “it is the first time New York courts have considered the Glomar doctrine, which isn’t established in the statutory language of the FOIL or previous state caselaw. From the ruling: ‘In view of the heightened law enforcement and public safety concerns identified in the affidavits of NYPD’s intelligence chief, Glomar responses were appropriate here.’”
The U.S. National Archives has published a proposal in the Federal Register to “add a system of records to its existing inventory of systems subject to the Privacy Act of 1974…In this notice, NARA publishes NARA 45, Insider Threat Program records.” Comments are due by July 8, and the proposed update will become effective on July 18, 2016 unless comments are received.
This week’s #tbt pick is chosen with the Israeli June 7, 1981, destruction of Iraq’s Osirak nuclear reactor in mind. 35 years ago this week Israel targeted Iraq’s Osirak nuclear reactor – nearly a year after Iran did. It’s likely that Iran’s aerial reconnaissance photographs from the 1980 attack, which the Islamic republic shared with Israel, were crucial to the Israeli Air Force’s complete destruction of the reactor on 7 June 1981. Here’s the CIA’s October 1, 1980, National Intelligence Daily that reported on the Iranian attack.
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The Office of Government Information Services (OGIS) and the Justice Department’s Office of Information Policy (OIP) will be hosting a requester roundtable on June 16 on how to improve agency FOIA websites – one of the modernization commitments made as part of the Third United States Open Government National Action Plan. If you have “ever spent far too long searching for something on an agency’s” FOIA page, consider RSVP-ing and providing some feedback about what should be best practice for agency FOIA sites.
Agencies are getting better at posting required information online, but there is still a lot of room for growth. In 2007, a National Security Archive E-FOIA Audit, “File Not Found,” reported that only one in five federal agencies had put online all of the specific requirements mentioned in the E-FOIA amendments, such as guidance on making requests, contact information, and processing regulations. Our follow up E-Audit, 2015’s Most Agencies Falling Short on Mandate for Online Records, shows some improvement – by 2015 the number of agencies that have checked those boxes is much higher — 100 out of 165 — though many (66 in 165) post just the bare minimum, especially when posting FOIA responses. When it comes to posting FOIA responses online, the 2015 audit found that only 40 percent of agencies have followed the law’s instruction for systematic posting of records released through FOIA in their electronic reading rooms – nearly 20 years after Congress passed the Electronic Freedom of Information Act Amendments.
Another area of frustration for FOIA requesters trying to navigate more than 100 different agency FOIA websites is the lack of standardization. Hunting down agency FOIA regulations provides a snapshot of how different one FOIA page can look from the next – and how frustrating this can be for requesters. DOJ OIP posts its FOIA regulations under a section called “FOIA Resources,” the CIA links to its regulations on its “FAQ” page, and the National Archives clearly shows where to find its FOIA regulations on its FOIA home page. Having required information like FOIA regulations in the same place on every FOIA page would prevent a lot of requester headaches.
A State Department Advisory Committee on Historical Diplomatic Documentation report reveals that last year the CIA agreed to disclose four covert Cold War actions “in forthcoming editions of the U.S. State Department’s official Foreign Relations of the United States (FRUS) series.” Steve Aftergood notes, “The FRUS series has been a significant driver of the national security declassification program, particularly since a 1991 statute required that FRUS must present a ‘thorough, accurate, and reliable’ documentary history of U.S. foreign relations — which necessarily includes information that was classified at the time — within 30 years of the events in question.”
The 1991 law Aftergood cites was passed after the State Department published a FRUS volume in 1989 on the 1953 coup in Iran – which received intense criticism for its failure to mention the CIA’s involvement in the coup. Congress passed the 1991 law to help address this glaring omission, requiring a reissue of the Iran volume, as well as those on relations with Guatemala (1954), the Democratic Republic of the Congo (1960–1968) that also ignored the CIA’s role in foreign policy. After 25 years, however, the Iran volume remains the only one still withheld; Aftergood reports “The status of the Iran volume is expected to be on the agenda of the upcoming meeting of the State Department Advisory Committee on June 6.” For a longer treatment on the 1953 coup FRUS from the Archive’s Deputy Director and Iran Project Director, Malcolm Byrne, read here.
State Department spokesman John Kirby admitted that segments of a 2013 press briefing video on Iranian nuclear negotiations were intentionally deleted at the request of someone in the department’s public affairs bureau – not by a “glitch” as State initially claimed. In 2013 reporter James Rosen asked former spokesperson Jen Psaki if it was the administration’s policy to lie to preserve the secrecy of the negotiations, to which Psaki responded, “This is a good example of that.” Rosen discovered his 2013 exchange with Psaki had been deleted while preparing a report on White House communications advisor Ben Rhodes, who recently boasted of creating an “’echo chamber’ to market the Iran nuclear deal and undermine criticisms from opponents.”
The FBI wants to exempt Next Generation Identification biometrics – including fingerprints and photos – from the Privacy Act. OpenTheGovernment.org expresses concern over the move, noting that “the FBI is not just seeking exemption from specific requirements of the Privacy Act. It has asked to be exempt from the part of the law that lets citizens enforce any Privacy Act violation (5 U.S.C. § 552a(g)) – even violations of requirements from which the FBI is not exempt. For example, the Privacy Act generally bars the government from creating databases about the political activities of its citizens (5 U.S.C. § 552a(e)(7)). Under the FBI’s proposal, the FBI could violate that rule – and private citizens could never take them to court.”
A federal tribunal in Buenos Aires announced guilty verdicts in the historic prosecution of eighteen Argentine military officers for participating in the coordinated, cross-border system of repression known as “Operation Condor” last week. The National Security Archive hailed the ruling as a “major milestone for the principle of human rights and the pursuit of accountability for human rights violators.”
The Archive’s Carlos Osorio testified at the trial and provided hundreds of declassified documents as evidence, including a declassified FBI document that stated that “a third and most secret phase of ‘Operation Condor’ involves the formation of special teams from member countries who are to travel anywhere in the world to non-member countries to carry out sanctions up to assassination….” The car-bomb murder of former Chilean diplomat Orlando Letelier and his American colleague, Ronni Karpen Moffitt, in downtown Washington D.C. on September 21, 1976, became the most infamous of Condor assassination plots.
Besides Osorio, Archive Senior Analyst and author of The Pinochet File, Peter Kornbluh, testified at the Condor trial, along with Archive advisory board member John Dinges, author of The Condor Years. Osorio supplied the court with 900 declassified records, many of which provided critical evidence for the proceedings. In final arguments presented to the judges, prosecutors cited the Archive’s documents some 150 times.
This week’s #tbt pick is inspired by a recent Government Accountability Office report that found the Defense Department’s Strategic Automated Command and Control System (DDSACCS) – “which is used to send and receive emergency action messages to US nuclear forces” – runs off 1970s IBM platforms and 8 inch floppy disks. This week’s #tbt pick is a Sandia Lab report released to the Archive thanks to a Freedom of Information Act (FOIA) request that disclosed new details on the 1961 Goldsboro nuclear accident. The report concludes that one of the multi-megaton bombs (Weapon 2) was virtually “armed” when it crashed into North Carolina – but the shock also damaged the switch contacts, which had to be intact for the weapon to detonate.
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Too many agencies are still under-performing on FOIA in the weeks leading up to the law’s 50th anniversary. For its part, the Commerce Department is refusing to release certain records under the FOIA, instead charging reporter David Yanofsky $173,775 for two databases because “it only gives that information to people and companies that pay for the privilege.” The databases are the only comprehensive records on who enters the US; one database is on anonymous immigration records and the other statistics about international air travelers. Yanofsky says “a representative for the International Trade Administration initially told him that the DOC bureau ‘did not want to release the records to [him] because it wanted to protect the revenue the data generated.’” Yanofksy correctly argues, however, that “Just because there may be a market for this information shouldn’t make it exempt from public disclosure.”
The National Institute of Health told FOIA professionals listening to its May 24 “All About Grants” podcast that FOIA requests must be “very specific” – a problematic misinterpretation of the statute’s actual requirement that the request be “reasonably described.” The NIH FOIA office would do well to revisit the Department of Justice’s Office of Information Policy procedural guidance, which clearly states ‘the fact that a FOIA request is very broad or “burdensome” in its magnitude does not, in and of itself, entitle an agency to deny that request on the basis that it does not “reasonably describe” the records sought. The key factor is the ability of an agency’s staff to reasonably ascertain exactly which records are being requested and then locate them.’
The State Department inspector general yesterday delivered a report to Congress rebuking Clinton’s use of personal email. The bottom line for all federal employees as Clinton seeks to wrap-up the Democratic nomination is that flouting the FOIA and federal records requirements is bad for future career goals. The IG findings echo those made by Nate Jones and I more than a year ago; namely that when Clinton used a personal email and server, there was a “law on the books at the time (the Federal Records Act), federal regulations on the books at the time (36 CFR 1236.22), and NARA guidance which the State Department received (NARA Bulletin 2011-03) that should have prevented Clinton’s actions.” The report also makes clear that Clinton, who was turned down for a National Security Agency Blackberry and did not want to carry more than one device, “worried that personal emails could be publicly released under the Freedom of Information Act.”
A FOIA request for the Attorney General’s written responses to questions from the House Judiciary Committee following a June 7, 2012, hearing shows that “A definitive accounting of the number of lawsuits in which the U.S. Government has invoked the state secrets privilege cannot be provided because some of those cases may be too sensitive to acknowledge or disclose.” The DOJ did note that the Attorney General had invoked state secrets privilege in six known cases between 2009 and 2013 – including Gen. Petraeus’s use of the privilege while head of CIA in an employee discrimination case, which is not widely considered a state secrets case.
The D.C. Circuit Court of Appeals has ruled that students are entitled to the same FOIA fee considerations as teachers. In his ruling, Appeals Court Judge Brett Kavanaugh said, “It would be a strange reading of this broad and general statutory language – which draws no distinction between teachers and students – to exempt teachers from paying full FOIA fees but to force students with presumably fewer financial means to pay full freight.” For more on a thorough examination of FOIA fee categories and fee issues, see Nate Jones’s article on “Unnecessary Freedom of Information Act Fees.”
Timothy Foster, a Georgia man convicted of murder after a 1987 trial and sentenced to death, used the Georgia Open Records Act to obtain documents “showing that prosecutors were keeping track of which jurors were African-American and that they seemed to be trying to minimize the number of blacks on the jury.” The Supreme Court ruled 7-1 (Justice Clarence Thomas was the only dissenter) that prosecutors violated the Constitution in allowing racial considerations “taint” jury selection. SCOTUS’s ruling does not overturn the death sentence, but it compels the Georgia Supreme Court to revisit its ruling denying Foster relief. Politico’s Josh Gerstein notes that, “It is unclear how broad an impact Monday’s ruling will have, in part because state public records laws vary and most inmates seem unlikely to be able to obtain copies of prosecutors’ files. In addition, defense attorneys suspect that many prosecutors are careful not to make written notes that could later support a claim that a juror was struck on the basis of race.”
On Friday President Obama will visit Hiroshima and will speak on the US dropping an atomic bomb on the city at the end of World War II (he will not, however, be visiting Nagasaki). The National Security Archive’s collection “The Atomic Bomb and the End of World War II” — which has been updated three times and now houses nearly 100 declassified documents — addresses, among other issues, the Trinity Test, the first nuclear strikes and their impact, and President Eisenhower’s early misgivings about nuclear use. As the Nuclear Vault’s director William Burr says, the unmatched collection “can help readers to make up their own minds about long-standing controversies such as whether the first use of atomic weapons was justified, whether President Harry S. Truman had alternatives to atomic attacks for ending the war, and what the impact of the Soviet declaration of war on Japan was.”
Matthew Aid recently highlighted the release of two National Security Agency collections on World War II. The first is nine volumes on the history of AXIS SIGINT operations during WWII, and the second is more than 29,000 pages of “material related to the World War II-era Target Intelligence Committee (TICOM).” Thanks to Matthew for pointing out these great resources.
British Columbia has announced it will post every Freedom of Information request online – including the name of the requester and the substance of their request. The plan is causing some concern among privacy activists and journalists, who are wary that such a policy will cost them “scoops,” but the controversy overshadows the fact that BC has yet to post any actual released documents online. In the US this unofficially happens with FOIA logs, which are lists agencies maintain of all the FOIA requests they receive and are published online, and the US FOIA has no expectation of requester privacy. The National Security Archive strongly supports posting FOIA releases online – and perhaps the best method that addresses both journalistic and FOIA advocates concerns’ is to require the documents be posted online, but not immediately (currently, the Department of State posts FOIA’d documents quarterly).
The Anatoly S. Chernyaev diary for 1976 – published in English for the first time this week by the National Security Archive – provides, among other insights, an inside look at the Central Committee and close-ups of Brezhnev and the Soviet system. Read the 1976 diary, as well as previous volumes, here.
On Friday, May 27th the Archive’s Kate Doyle will chair a Latin American Studies Association “Presidential Session” on “Mexico After Ayotzinapa: A Conversation with the International Investigatory Panel.” The investigatory panel was appointed by the Inter-American Commission on Human Rights to investigate the Ayotzinapa student abductions and concluded there was a massive cover-up by the Mexican government. The LASA session will offer an opportunity to converse directly with two members of the Ayotzinapa panel, both with long trajectories in the field of human rights in Latin America. It will be held from 4:15 to 5:45 PM in the Rhinelander Gallery South. Please note that attendance is limited to LASA members attending the conference (although members of the press can attend for free if they present credentials).
This week’s #tbt pick is chosen with the recent confirmation of the death of Taliban leader Akhtar Mohammad Mansour in a drone strike in mind. This week’s pick is a declassified 2002 State Department cable on terrorism financing that notes Mansour was Afghanistan’s former Minister of Civil Aviation and nicknamed the “King of Planes” for his control of all military flights. The cable is one of 17 declassified documents found in the National Security Archive’s “Taliban Biography” – which charts the structure and leadership of the group from 1996 through 2002.
Soldiers Exposed to “Chemical Unknown” in Iraq not Getting Adequate FOIA Responses from DOD, and More: FRINFORMSUM 5/19/2016
The Defense Department is telling soldiers that were exposed in 2003 to a “chemical unknown” in Taji, Iraq that it has no documents on the incident – after a decade of saying that documents on the event were classified.
C. J. Chivers of the The New York Times reported in May 2015 that, for over a decade, the US military denied FOIA requests on the chemicals soldiers were exposed to, resulting in chronic illnesses. The Army only released the two-page 2003 Camp Taji Incident report, written by the multinational Iraq Survey Group, after years of FOIA requests; the report 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 in 2015 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.”
Now, according to reporting by Samantha Foster at the Topeka Capital-Journal, the Army is telling soldiers like Army Spc. Sparky Edwards and former Sgt. First Class Dennis Marcello that there are no documents on the chemical they were exposed to or the incident. Nate Jones, the Archive’s FOIA project director, notes that the DOD may be claiming to have no documents because they were possibly destroyed or misfiled during the war – or because the large, decentralized Defense Department genuinely doesn’t know where to look to find the records. Jones identifies this as a prime example of why FOIA requesters “must specify exactly where they want to search or risk the agency not going the extra mile” to find them, and that it is always a good idea to appeal a “no records” response.
According to Department of Justice statistics, last fiscal year an obscenely high 130,113 FOIA requests (16.9 percent of requests processed) were deemed to result in “no records” responses. As the Archive has learned, more often than not, appealing a “no records” response and explaining why you think the records exist and even suggesting which records (including the Washington Records Center –control f) the agency should search leads to more records being found.
The countdown to FOIA’s 50th anniversary this July 4th has begun. To celebrate, OpenTheGovernment.org is spear-heading a campaign that will highlight the importance of FOIA, “while promoting the passage of meaningful reform legislation that now has the potential to become law by the time the statute turns 50 in less than two months.” This week OTG is promoting FOIA success stories; featured successes include Interior Department FOIA releases showing that big oil is abandoning billions in Arctic drilling rights, and the National Security Archive’s Cyber Vault, which is filled with FOIA-obtained documents on US cyber policies and activities. Next week OTG will partner with MuckRock to highlight technical advances that can improve the FOIA.
The preservation of the Senate’s report on the CIA’s Torture Program is increasingly in doubt; the DC Circuit Court of Appeals recently affirmed the District Court’s ruling that the report “is a congressionally generated and controlled document that is not subject to disclosure under FOIA.” Days after the appeals court decision, news broke that the CIA Inspector General’s office “accidentally” destroyed its copy of the report. The recently revealed destruction allegedly took place last summer – months after the CIA’s IG, David Buckley, resigned. Before his resignation Buckley issued a report finding that five CIA officials improperly monitored Senate Intelligence Committee staff working on the Torture Report; while his report admonished the involved officials, the agency opted not to punish them. A CIA panel handpicked by Director John Brennan, “in what was widely seen as an embarrassing rebuke to Buckley,” went so far as to clear the officials of any wrongdoing, concluding that the officials had acted reasonably in the face of a potential security breach. The Obama administration has yet to nominate a permanent replacement.
Cause of Action is suing the Obama administration under the FOIA, accusing it of illegally delaying the FOIA process by forcing agencies to send records that may be contain White House equities to the West Wing for review. The policy stems from a 2009 memo instructing agencies to send “to the White House records sought in FOIA requests on a wide variety of topics, including some where the only obvious interest the White House would have in the files appears to be political in nature.” The Cause of Action suit seeks a judicial ruling that agency compliance with the 2009 memo “is unlawful to the extent that it delays compliance with FOIA deadlines.”
A FOIA request to the Department of Homeland Security shows that DHS views Twitter as a “constant provider [of intelligence] and is fairly reliable” – but it is redacting information from publicly available tweets in response to FOIA requests. DHS’s Intelligence and Analysis Division, after discovering tweets that advocated using the Baltimore police brutality protests as an incentive to advocate Islamic State goals and killing police, circulated a report on how to prevent the protests from turning into a “hotbed of potential terrorist activity.” Ironically, DHS redacted the public Twitter handle from the report – marked For Official Use Only – under FOIA’s law enforcement exemption, and “argued that some of the user’s other publicly available information is private and could not be disclosed.”
The Director of National Intelligence officially approved the use of publicly available social media postings in security clearance investigations, meaning that while investigators cannot “friend” someone on Facebook, for example, to gather information, they can use any information that is “public” on Facebook. Steve Aftergood notes, however, that “The utility of social media for background investigations remains to be demonstrated, particularly since any public posts that do not voluntarily advertise behavior that is at odds with official guidelines would not trigger investigative attention.”
The Defense Department has updated several doctrinal manuals. Steve Aftergood highlighted the updates in a recent blog, noting that the DOD has upgraded its manuals on the use of biometric data and the military and intelligence applications of that data, as well as its manual on the challenges of mountain warfare and cold weather operations. Yet another document featured in the post is an Air Force publication covering offensive and defensive space operations.
The ACLU’s FOIA lawsuit for the CIA’s rationale for targeting US citizens Anwar al-Awlaki and Samir Khan in a drone strike has also brought down Jason Leopold’s parallel – albeit more targeted – suit. The ACLU’s broader suit sought, in addition to the CIA’s “white paper” Leopold was requesting, about a dozen other documents. “Leopold said in an interview that his appeal stood a better chance, and his attorney said as much to the ACLU, which pursued its case anyway, and lost it in an unpublished decision that sank Leopold’s case Monday.”
Recently declassified State Department intelligence reports –posted by the National Security Archive – illuminate a range of important questions about nuclear weapons in world politics during the 1950s and 1960s, including whether new nuclear weapons states would raise the risks of nuclear proliferation. Highlights from the 28 documents published in the posting include: the first comprehensive U.S. government report on the problem of nuclear proliferation, prepared by INR in May 1957, covering possible developments in Europe, Latin America, South Asia, and East Asia; Swedish debates over whether to develop programs for nuclear weapons; and West German opposition during early 1967 to details of the proposed Nuclear Nonproliferation Treaty. The reports also address Indian nuclear capabilities, the Chinese nuclear missile program, French nuclear weapons developments, Soviet strategic decisions, the Soviets and nuclear nonproliferation negotiations, Japanese nuclear policy, nuclear forces in Western Europe, and European reactions to anti-ballistic missile programs.
An ex-CIA officer recently claimed to have tipped off South African authorities on Nelson Mandela’s location, leading to his 1962 arrest — and subsequent 27 year prison sentence. The admission reignites a fierce debate about the extent of the agency’s involvement in the arrest. The National Security Archive’s work on South Africa includes reporting on our blog concerning the United States’ South Africa policy at the time of Mandela’s arrest, and coverage of Ryan Shapiro’s FOIA lawsuit to reveal USG involvement in the arrest. Other highlights include our digital South Africa collection (South Africa: The Making of U.S. Policy, 1962–1989), which provides a contemporary record of changing US responses to historical events in South Africa from the time of Mandela’s arrest in 1962 through 1989.
This week’s #tbt pick comes from the Archive’s Taliban Project vault, and is a 2007 post addressing the question of whether or not Pakistan is “The Taliban’s Godfather”? The 35 documents in this posting — released under the FOIA – detail US concern over Pakistan’s relationship with the Taliban during the seven-year period leading up to 9/11. The documents, first published by the Archive in 2007 days after Pakistan’s president Pervez Musharraf acknowledged “Afghan militants are supported from Pakistan soil,” clearly illustrate that the Taliban was directly funded, armed and advised by Islamabad itself. As Barbara Elias notes, “As to Pakistan’s end-game in supporting the Taliban, several documents suggest that in the interest of its own security, Pakistan would try to moderate some of the Taliban’s more extreme policies.”