OIP Report Misleadingly Touts a Government-Wide FOIA Release Rate of 94.4%, Continued Surveillance of Black Lives Matter, and More: FRINFORMSUM 6/4/2020

A great example of a “partial FOIA release” – more on FOIA Mapper: https://foiamapper.com/annual-foia-reports-2015/

OIP Report Says Fed Has Improved FOIA Processing

There is a new leader at the helm of the Department of Justice’s Office of Information Policy – but scant evidence in its latest summary of annual agency FOIA reports that the office is taking a new direction monitoring and “encouraging” FOIA compliance across the government. Despite longtime director Melanie Pustay’s departure last year – a director who Rep. Jason Chaffetz (R-Utah) accused of living in “la-la land” for testifying that she believed FOIA was being properly implemented – and the appointment of Bobby Talebian, OIP continues to tout misleading and unreliable FOIA statistics.

The FY2019 summary report argues that agencies have achieved a government-wide release rate of 94.4% (up from 93.8% last year). OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see above for an example), and excluding more than 270,700 requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent.

Other highlights from the report include:

• The government received 858,952 FOIA requests in FY 2019, down slightly from FY2018’s all-time high of 863,729 requests.
• Exemption 7(c) and 7(e) account for more than 50% of all exemptions applied to denied records or portions of records.
• Backlogged requests have decreased from 130,718 in FY2018 to 120,436 in FY2019.
  • As a reminder, in 2008 President Obama instructed every agency to reduce its FOIA backlog by ten percent every year. As my dear former colleague Nate Jones notes in his article, FOIA: A Colossus Under Assault, only one agency did this – the Department of Health and Human Services.
• Four agencies account for 65% of all referrals (and associated delays): DOD, DOJ, DHS, and CIA.
• The appeals backlog continues to grow – up to 5,087.
  • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
• Agencies reported collecting $2,547,638 in FOIA fees – totaling less than .5% of total FOIA costs. These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.
• Agencies spent nearly $38,842,948 in FOIA litigation. Put another way, agencies lost 15x as much money fighting bad FOIA decisions in court as they collected in FOIA fees.

As always, this year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure. If agencies are looking for guidance on how, they should turn to the recommendations made by the FOIA Federal Advisory Committee, which includes instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches — the key reason behind the years and decades-long processing delays.

Continued Surveillance of Black Lives Matter

The murder of George Floyd by Minneapolis police officers has sparked global protests against police brutality and has brought Black Lives Matter back to the forefront of the political debate. Readers who remember the FBI’s COINTELPRO – a series of domestic surveillance projects targeting political organizations the bureau deemed subversive – likely will not be surprised to learn that BLM has been the subject of government surveillance nearly since its inception. Here is a by-no-means complete list of resources on the subject:

• Buzzfeed News’ Jason Leopold and Anthony Cormier report that in June 2020 the Justice Department gave temporary permission to the Drug Enforcement Administration to “‘conduct covert surveillance’ and collect intelligence on people participating in protests over the police killing of George Floyd.”
• In 2019 a delegation of organizations led by MediaJustice met with members of Congress to seek transparency on the FBI’s surveillance of racial justice movements and the “targeting of Black activists through the use of threat designations like ‘Black Identity Extremist.’” As the MediaJustice press release notes, an August 2017 FBI intelligence assessment, entitled “Black Identity Extremists Likely Motivated to Target Law Enforcement Officers,” was sent to nearly 20,000 law enforcement agencies across the country.
  • Just Security reports in June 2019 that, “FBI Counterterrorism Division Director Michael McGarrity had admitted under questioning that the FBI could not cite a single example of a murder that could be linked to any African American activist group, including Black Lives Matter. He also claimed that the Bureau had eliminated the entire category of ‘Black Identity Extremists’ from its lexicon.”
• NYPD emails released in 2019 show substantial surveillance of Black Lives Matters between November 2014 and January 2015.
• In 2016 Jason Leopold won the release of FOIA documents showing that the Department of Homeland Security monitored social media for “intelligence” concerning potential terrorist activity during the Baltimore protests of the death of Freddie Gray while in police custody.
• Documents released to MuckRock “show that the FBI helped local law enforcement monitor and police at least two Black Lives Matter protests in July 2016.”
• DHS FOIA releases to Leopold show that in 2014 the agency worked “on a plan to ‘plug’ federal officers into protests to ‘perform surveillance’ and ‘collect intelligence in the crowd’” protesting the shooting death of unarmed black teenager Michael Brown by police officer Darren Wilson in Ferguson, Missouri.
• More FOIA releases, this time to The Intercept, provide more details on DHS’ regular monitoring of Black Lives Matters since Ferguson.

PIDB Report on Modernizing Classification System

The Public Interest Declassification Board’s (PIDB) latest recommendations can be found in the new report, A Vision for the Digital Age: Modernization of the U.S. National Security Classification and Declassification System. The board’s recommendations are – as always – good, and underscore the reality that without a radical overhaul, the government’s Cold War-era approach to secrecy and declassification will cripple it in terms of safe-guarding necessary secrets and declassifying the information the public and policy-makers need in the 21^st century. PIDB’s technological recommendations, like adopting a system-of-systems approach to streamlining technological requirements (and acquisitions), are particularly good, as is the Board’s recommendation that the the National Declassification Center be further empowered vis-à-vis originating agencies.

The report does not, however, address several large structural issues. Steve Aftergood points out that chief among the unresolved problems is “the criteria for determining what is properly classified and what must be disclosed.”

The Board is hosting a virtual public meeting tomorrow, June 5, at 11 AM.

2nd Circuit Helps White House Hide Visitor Logs

The 2^nd Circuit Court of Appeals recently ruled against the National Security Archive’s lawsuit to restore the routine disclosure, under the Freedom of Information Act (FOIA), of the White House visitor logs that were taken down by the Trump administration in early 2017.

The 2^nd Circuit’s 22-page ruling concentrates on the ostensible intrusion on a president’s ability to receive confidential advice, and the supposed burden of using FOIA’s regular exemptions to process the logs for release, while never acknowledging that the Obama White House routinely published its visitor logs some 90 days after the visit – some six million such records in all – with no apparent hindrance on presidential activity.

The ruling highlights severe weaknesses in the Federal Records Act – which apparently does not preclude a president from converting agency records into presidential ones not covered by FOIA through the simple expedient of a memo of understanding – and in the Presidential Records Act – which provides extremely limited forms of external review for White House record-keeping and the lack thereof.

Overkill, Assured Destruction, and the Search for Nuclear Alternatives: U.S. Nuclear Forces During the Cold War

Seventy-five years after the bombings of Hiroshima and Nagasaki marked the start of the atomic era, questions about the value, danger, and morality of nuclear weapons continue to present a huge challenge for politicians, military strategists, and ordinary citizens.

As that freighted anniversary approaches, the National Security Archive’s Nuclear Vault has gathered a selection of primary sources that could be considered key to understanding the arc of U.S. nuclear policy during the crucial first four decades. The aim is to encourage broad discussion of the many facets of nuclear history grounded in direct evidence.

No doubt many readers will have their own ideas for what to include.  We welcome nominations and at a future date will publish an assortment of additional materials in an annex to this posting.

The “Irreplaceable” Chernyaev Diary

The National Security Archive marks what would have been Anatoly Sergeyevich Chernyaev’s 99th birthday with the publication for the first time in English of his extraordinary Diary for 1980. At the time of the writing, Chernyaev was Deputy Director of the International Department of the Central Committee responsible for the International Communist Movement (ICM) and fraternal parties. The diary traces the further decline of the top Soviet leadership, the emergence of strikes and other labor unrest in the Soviet Union in the midst of deteriorating economy, and the dark cloud of two invasions—one that already happened—Afghanistan, and one that Chernyaev fears might happen—Poland.