Federal Mugshots no Longer FOIA-able: FRINFORMSUM 7/14/2016

The 6^th Circuit Court of Appeals has ruled en banc against the Detroit Free Press and against the status quo, determining that federal booking photos and mugshots taken by the US Marshals no longer need to be released through FOIA. The pernicious ruling overrules a previous 6^th Circuit decision in favor or releasing mugshots under FOIA, and forces transparency advocates to spend limited staff and resources to fight off government efforts to shrink the current transparency landscape, rather than fight to expand the public’s right to know. Adam Marshall of the Reporters Committee for the Freedom of the Press wrote eloquently last year why the secrecy surrounding federal booking photos and mugshots is troubling, noting that while there are “no privacy rights implicated by releasing photos of persons who have been arrested, indicted, and appeared in open court… there is a powerful interest in ensuring the criminal justice system remains open to the public.” Marshall’s piece, with an important history of the difficulties obtaining federal mugshots even under the FOIA prior to today’s ruling (including the need to file the FOIA from Kentucky, Michigan, Ohio, or Tennessee), is available here.

C-SPAN’s American History TV recently visited the National Security Archive to talk FOIA history with our director, Tom Blanton. The topics covered in the informative and entertaining 11-minute video range from the signing of the Freedom of Information Act in 1966 (thanks in no small part to the work done by President Johnson’s press secretary, Bill Moyers) to FOIA’s important role correcting the Flint water contamination crisis and Marines being issued defective bulletproof vests. In both instances FOIA helped draw sustained attention to the issues, prompting the Flint government to switch water suppliers and the DOD to issue a recall of the life-threatening vests, respectively.

Blanton also highlighted the important role commercial entities played in paving the way for the modern Freedom of Information Act. Prior to the 1800s access to government records was only granted after judicial proceedings that proved a requester’s “need to know” what was in the documents, rather than a “right to know.” During the 19^th century, however, real estate title insurance companies argued repeatedly and effectively that courthouse records, funded by taxpayer dollars, should be public records, laying the groundwork for public availability of courthouse records and other government documents.

Earlier this week the Senate Judiciary Committee held its hearing on “FOIA at 50: Has the Sunshine Law’s Promise Been Fulfilled?” Key takeaways from the hearing include the need for more proactive posting, posting FOIA responses online for all to see, and for agencies to take advantage of available technology to improve their FOIA processing rather than sticking with proprietary software that hampers the requester (and FOIA processor) experience. Witnesses included Sunshine in Government Initiative director Rick Blum, the Office of Government Information Services founding director Miriam Nisbet, University of Arizona professor and Society of Professional Journalists chair David Cuillier, and Professor Margaret Kwoka; all of their written testimonies are available here.

In a recent War on the Rocks article, Dean of American University’s School of International Service, James Goldgeier, discusses the promises that were made (or not) by American leaders to the Soviet, and later Russian, leadership about the eastward expansion of NATO after the dissolution of the USSR – and how a FOIA release sheds light on a key moment in the debate. In February 1990 US Secretary of State James Baker told Soviet leader Mikhail Gorbachev, discussing the terms of German unification, that “there would be no extension of NATO’s jurisdiction for forces of NATO one inch to the east.” Goldgeier writes that an October 1993 meeting between US Secretary of State Warren Christopher seemed to continue in that vein, with Christopher telling Russian President Boris Yeltsin during the October meeting that the US would not support new members joining NATO. A year later, however, NATO enlargement proceedings began.

Goldgeier successfully pried loose the memorandum of conversation of the October meeting with a FOIA request, “which sheds much more light on what was said in October 1993 (and in what order) than do the memoirs of Christopher and Clinton’s chief Russia hand, Strobe Talbott.” Goldgeier’s analysis of the memcon confirms that the document “makes clear why Yeltsin later felt betrayed. The elements of the Christopher and Talbott recitations are there, but not in quite the same order as implied, and in ways that are fairly misleading.”

Marshall Project investigating and New York Times reporting are drawing attention to the for-profit prison transport service – vans that carry “tens of thousands of fugitives and suspects — many of whom have not been convicted of a crime – locally and across state lines.” The Marshall Project filed FOIA requests, obtained court documents, and conducted countless interviews to document “a pattern of prisoner abuse and neglect in an industry that operates with almost no oversight.” Some of the more alarming trends uncovered include extremely limited training for guards, sexual assault, and sporadic monitoring by the Department of Transportation (DOT). The Marshall Project found that DOT “monitoring is infrequent, and companies are typically given advance notice of an audit. Between 2000 and 2015, records indicate, the department issued fines 20 times, most below $10,000.”

A Top Secret//SI//REL USA, FVEY National Security Agency briefing on Cyber Threats and Special Source Operations (SSOs) is one of the highlights from this week’s Cyber Vault update (updated every Wednesday). The briefing discusses the surveillance programs the National Security Agency (NSA) participates in, with a breakdown of who the NSA partners with, what legal authority authorizes each program, and what various partner constraints are.

PDF page 14 provides a list of “access portfolios” the NSA maintains by who partners in the program with the agency (either unilateral, foreign, or corporate). Unilateral programs are programs in which access is enabled by US partners; the list of unilateral programs include Operations Mystic, Rampart-I/X, Rampart-M, Rampart-T, and one redacted program. Foreign access portfolios – those enabled by 2nd and 3rd parties – include Rampart-A and Windstop, while corporate access portfolios, in which access is enabled by telecom providers, include Blarney, Fairview, Stormbrew, Prism, and Oakstar.

The document also includes a slide (PDF page 17) detailing what legal authorities authorize various surveillance programs. According to the briefing: EO 12333 authorizes Rampart-A, Rampart-I/X, Rampart-M, Rampart-T, DGO, Windstop, Oakstar, Mystic, and one redacted program; FISA authorizes Blarney; Transit authorities authorize Stormbrew and Fairview; and FAA-702 authorizes Stormbrew, Fairview, Prism, and Blarney.

The FBI alleged in a legal brief last week that its network investigative techniques (NIT) hacking tool is not malware because it’s not “malicious.” The author of the brief functionally argues that techniques used to “break into the computers of suspected criminals” should not be considered malware because the breach is done with good intentions. The CATO Institute’s Julian Sanchez uncovered the brief in connection to a case on Operation Playpen, in which the FBI broke into a child pornography website by exploiting a flaw in the TOR browser. More on the creepily named Operation Playpen here.

This week’s #tbt pick is chosen with Washington Nationals’ star catcher Wilson Ramos’ first appearance in the MLB All Star game in mind, and is an April 2016 blog by Archive FOIA Project Director  Nate Jones on the State Department’s declassification of a cable on the November 9, 2011, kidnapping and November 12 rescue of Ramos in response to a National Security Archive Freedom of Information Act request.  According to the previously “Secret/NOFORN” cable composed by the US Embassy in Caracas, Ramos’s rescue “was the result of good police work” by Venezuela’s Corps of Scientific, Penal and Criminal Investigative Corps (CICPC).

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Happy FOIA-ing!