Good FOIA Fee Guidance from OIP, How the Next President Can Strengthen Records Accountability, and More: FRINFORMSUM 10/20/2016

Good FOIA Fee Guidance from OIP

The Department of Justice Office of Information Policy (OIP) has issued good FOIA fee guidance that clearly lays out for agencies the limitations the FOIA Improvement Act of 2016 places on their ability to assess fees. Importantly, the guidance reminds agencies that “unusual circumstances,” which agencies routinely cite when processing FOIA requests while continuing to assess fees as usual, are extremely limited and must meet strict thresholds to qualify as “unusual.” In cases where that threshold is not met, most fees cannot be assessed; OIP also emphasizes that if the request involves 5,000 pages or less and agencies take over 30 days to respond, most fees may not be charged. The strong guidance – which should result in agencies charging much fewer fees going forward – is good to see from OIP; the next step will be ensuring that the Office of Management and Budget follows through on recommendations by the FOIA Advisory Committee to update its three-decade-old fee guidelines.

Which fees can be charged by requester category if the government misses its deadline (and does not proclaim your request as “unusual.”)

FOIA Federal Advisory Committee Meeting

The FOIA Advisory Committee’s next meeting will take place on Tuesday, October 25^th at 10 AM in the Archivist’s Reception Room at NARA. While the meeting will be recorded, live streaming will not be available. (I’ll be there live-tweeting for those who can’t make it.)

Opportunity for Next President to Strengthen Records Accountability

OpenTheGovernment.org recently published a letter for both presidential campaign transition teams for actions the candidates can take to demonstrate their commitment to strengthening records accountability within the federal government. Noting that the revelation of Secretary Clinton’s use of personal email “created a pivotal moment for the public to pressure the government to examine the way officials manage, preserve, and release information in the digital age,” the letter’s co-signers, including National Security Archive director Tom Blanton, urge the president to issue a first-day memorandum to all executive departments, agencies, and independent agencies directing them to take the following actions:

“(1) Within six months each Senior Agency Official for Records Management, working with the National Archives and Records Administration (NARA), shall develop and implement agency-wide records management training for all agency employees and contractors performing agency functions.

(2) Within six months each Chief Technology Officer or their equivalent shall report to the agency head on the status of their agency’s record keeping systems and the progress they have made toward satisfying the requirements of the August 24, 2012 memorandum issued by the Office of Management and Budget, “Managing Government Records Directive.”

(3) Within nine months each Inspector General, working with each Senior Agency Official for Records Management, shall report to the agency head on steps the agency has taken with respect to subparagraphs (1) and (2).

(4) Within 12 months the head of each agency or designated senior agency official shall report to the President on the status of the agency’s compliance with the August 24, 2012 OMB memorandum.

(5) Within 12 months, and every two years thereafter, each agency shall develop an open records plan, with public engagement, that identifies the key steps the agency will take to ensure ongoing compliance with all federal records requirements.”

Secret Law and “Informal” OLC Opinions

NYU Law School’s Brennan Center for Justice used a series of targeted FOIA-requests to help uncover how much reliance on secret law has expanded post 9/11, and to show how it “persists even in areas where we thought the secrecy had ended.” The report, compiled by Brennan Center co-director Liza Goitein and highlighted in a recent New York Times op-ed, notes that “at least 74 [Justice Department Office of Legal Counsel] O.L.C. opinions from 2002 to 2009 on national security issues, including intelligence gathering and the detention and interrogation of suspected terrorists, remain classified. Similarly, despite the disclosure of many FISA court opinions following Edward Snowden’s revelations, new information from the Justice Department indicates that about 30 significant opinions remain secret.”

The Washington Post’s Ellen Nakashima notes that the still-secret OLC material “includes memos documenting advice given over the phone to agencies.”

The creeping practice of agencies seeking unwritten advice from OLC is controversial. In November 2015 two of the government’s top lawyers told American Bar Association Standing Committee on National Security Law attendees that agencies are shying away from OLC opinions in favor of seeking “informal” and unwritten advice out of concerns the OLC opinions will be sought under the FOIA. The CIA’s General Counsel Caroline Krass told the audience, and acting OLC head Karl Thompson confirmed her assessment, that FOIA has “served as a deterrent to some in terms of coming to the office to ask for a formal opinion.” (Goitein and the ACLU’s Brett Max Kaufman forcefully rebutted Krass and Thompson’s assertions in a series of postings for Just Security that same month).

The House Oversight and Government Reform Committee sent a letter to the DOJ in March 2016 “seeking, among other things, documents showing how many FOIA requests for OLC opinions OLC received between 2005 and 2015, and “Documents sufficient to show whether OLC, or the Department more generally, utilizes any automatic program, such as Capstone, for Federal Records Act purposes.” As far as this author knows, no response has been published.

The data freed by the Brennan Center’s FOIA requests to the State Department also revealed that the “42 percent — almost half — of all international agreements and treaties dating from 2004 to 2014 have not been published. The Case Act of 1972 requires that international agreements be made public, but it allows for certain exemptions, such as for national security purposes.”

Every CRS Report – for Free

Daniel Schuman, policy director for Demand Progress, has successfully spearheaded a campaign to make every Congressional Research Service report available online for free. The site currently houses 8,255 reports. In an article explaining what motivated him to build the useful website, Schuman says, “widespread access to CRS reports increases the reservoir of knowledge available to the American people. If the first result for any substantive internet search is Wikipedia, shouldn’t it contain the knowledge that the American people spent $100 million annually to refine? CRS reports can help make constituent communications to congress better by helping to provide a useful context for people who have questions about matters of policy.”

FOIA Release Reveals Fears U.S. Could be Implicated in War Crimes in Yemen

Documents obtained by Reuters through the Freedom of Information Act and dating from May 2015 through February 2016 show State Department officials’ private concern that following-through on a $1.3 billion arms sale to Saudi Arabia while it carries out air strikes against Yemen that have killed thousands of civilians could implicate the US in war crimes. Specifically, the heavily-redacted documents “reveal new details of how the United States pressed the Saudis to limit civilian damage and provided detailed lists of sites to avoid bombing, even as officials worried about whether the Saudi military had the capacity to do so.” One State Department official said in an October 2015 meeting, “The strikes are not intentionally indiscriminate but rather result from a lack of Saudi experience with dropping munitions and firing missiles.”

FOIA and the Football War

On July 15, 1969, Honduran radio networks, using the country’s recent World Cup qualifier loss to El Salvador as pretext for violence, encouraged listeners “to grab machetes or other weapons and move to the front to assist the army” in its 4-day war against their Salvadoran neighbors. The Archive’s Nate Jones recently joined the Wilson Center’s Sports in the Cold War podcast to discuss how the contentious match combined with political tensions over immigration and an ill-defined border to spark the so-called “The Football War” – and how declassified Central Intelligence Bulletins and President’s Daily Briefs obtained through the Freedom of Information Act provide a vivid day-by-day account of the incident.  Listen here.

Able Archer 83: The Secret History

Jones is the author of the new book Able Archer 83: The Secret History of the NATO Exercise that Almost Triggered Nuclear War and will be giving a special presentation on his research at the Wilson Center today at 3PM, with commentary by Archive director Tom Blanton. Published this month, Able Archer 83 tells the story of this dangerous nuclear incident, the generals who ran it, and the American and Soviet leaders it affected, through a selection of declassified documents pried from U.S. and British agencies and archives, as well as formerly secret Soviet Politburo, KGB, and other Eastern Bloc files. The book vividly recreates what the National Security Agency described as “the most dangerous Soviet-American confrontation since the Cuban Missile Crisis.”

 CIA Overreach: 22-Year-Old FOIA Request Needlessly Withheld in Full

NARA, at the CIA’s urging, recently withheld in full a 22-year-old FOIA request for a document that was very likely released in full in 1999 by the Eisenhower Library. The CIA’s denial of one of the requested documents – from 1958 – raises serious doubts about the quality of the declassification review it provides for records at NARA. It also raises questions about the role of the National Archives in the declassification of archival records. The National Security Archive’s Dr. William Burr has a proposal that would go a long way helping limit instances of such senseless secrecy: “Such problems could be managed, however, if archivists at the National Declassification Center, which is lodged at NARA, had the authority to intervene when they believe that an agency decision needs to reconsider its judgments.  In that case, an archivist could ask for a justification of the decision. If she is not persuaded, an NDC committee could undertake a quality review to decide whether the agency is making a reasonable case and order further review if necessary.  The NDC is unlikely to take such action on its own; it would probably require a decision by the Archivist of the United States or even the Information Security Oversight Office to grant such authority.”

TBT Pick – “Fujimori’s Rasputin”

This week’s #tbt pick is a 2000 posting of declassified documents on Vladimiro Montesinos – referred to as “Fujimori’s Rasputin.” The documents show that as early as October 1990, US Army intelligence analysts were already referring to Fujimori as “in the hip pocket of the National Intelligence Service (Servicio Inteligencia Nacional –SIN),” and as “particularly influenced by Vladimiro Montesinos.” In a report titled “Who is Controlling Whom” high-level Peruvian army officers described to US intelligence analysts this “extraordinary…situation in which the intelligence apparatus is in effect running the state.”

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Happy FOIA-ing!