The FOIA’s Best of Times, The FOIA’s Worst of Times: FRINFORMSUM 6/9/2016

“You will have to make an international effort to have your problems understood. Otherwise, you, too, will come under increasing attack. If there are things that have to be done, you should do them quickly. But you must get back quickly to normal procedures.”

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 50^th 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%.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

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.

Want to stay on top of the latest FOIA news? Click here to sign up for our weekly FRINFORMSUM email newsletter.

Happy FOIA-ing!