This Week in Transparency: Runaway Classification and Bill Nye the Science Guy
CJ Ciaramella
August 8, 2014
This post is adapted from CJ Ciaramella's weekly Freedom of Information Act (FOIA) newsletter, which you can subscribe to here.
Runaway classification: Rep. Bennie Thompson (D., Miss.) and Ron Wyden (D., Ore.) introduced a bill to reign in classification, the Washington Post reports:
"The measure would request that the president to trim the amount of classified information by at least 10 percent within five years, in addition to granting the Merit Systems Protection Board authority to hear cases from employees who have been deemed ineligible for security clearance and establishing a congressional stance that only positions involving access to classified information should require clearance, among other actions.
Threats to press freedom around the world are at an all-time high. Sign up to stay up to date and take action to protect journalists and whistleblowers everywhere.
Thanks for signing up for our newsletter. You are not yet subscribed! Please check your email for a message asking you to confirm your subscription.
"The government spends more than $11 billion classifying more than 80 million documents each year, according to a 2013 report from the National Archives and Records Administration.
"Thompson and Wyden said in a joint statement that the ballooning volume of classified materials has sparked an increase in security-clearance requirements. More than 5 million federal employees and contractors need such clearances for their roles, according to data from the Director of National Intelligence."
Runaway classification, cont.
The National Security Archive's Nate Jones has an interesting essay for the American Historical Association, "Black Holes in the Predecisional Universe: Agencies Gain a New Justification for Secrecy":
"Troublingly, the CIA's withholding of its Bay of Pigs history is an attempt to keep another universe of documents from disclosure: those it claims are 'predecisional.' The CIA is seeking this expansion because key figures within the US government have begun reviewing the CIA's classification decisions and overruling the agency's claims for the need of secrecy. The Interagency Security Classification Appeals Panel (ISCAP), housed at the US National Archives, overrules government classification claims in more than 70 percent of the documents it reviews (including those of the CIA).
"To avoid being overruled by ISCAP, the CIA has employed two tactics. First, it uses the Operational Files Exemption so that requesters cannot officially identify classified documents for ISCAP to review and overturn. Second, it has begun to stop withholding some documents because they are classified (which ISCAP could overturn) and instead withholds them because they are 'predecisional' (which ISCAP has no authority to overturn). The CIA's shell game is an affront to those who strive to compile an accurate history of US intelligence, foreign policy, and national security history."
"That's not the way FOIA is supposed to work," Marc Ambinder writes in The Week. "The agency has released a trove of interesting documents, with many of them portraying the CIA in a poor light. Selective releases do not, however, build your transparency and openness cred. The CIA does not do justice to history."
Related: The Society for Historians of American Foreign Relations says changes to the b(5) exemption and improvements to the CIA's CREST search engine are needed:
"Researchers report long lag times for obtaining documents through the FOIA process. At best, they report an eight month to one year wait, but delays also range from two to four years, five to seven years, and longer. Some researchers report that requests are still pending after a decade or more. This has caused some researchers to give up, since they have finished their dissertations and books while still waiting for FOIA requests to be processed. As one respondent put it: 'At one of my research trips as a graduate student, I was advised by the archivist that the MDR/FOIA requests should be filled and will be available (if I am lucky) by the time third edition of my book (hypothetical) would come out.'"
FOIA of the week: Goes to Buzzfeed, which FOIA'd White House communications with Bill Nye the Science Guy. I guess we've finally found some White House communications that aren't privileged.
Redaction of the Week: Courtesy of News Tribune reporter Kate Martin, a four-year-old organization chart, redacted under the draft exemption
LAWSUITS
It was a bad week if you were a Justice Department FOIA lawyer, but a very good week if you were a person who likes watching judges demolish bad arguments from Justice Department FOIA lawyers.
Most impressively, the government tried to withhold documents requested by an inmate because they were contained on CDs and a thumb drive. The FBI claimed they were "physical items," not records. The judge found this argument unpersuasive. From the Legal Times:
“The Bureau’s rationale seems to be that the electronic media in question are not ‘records’ for FOIA purposes because they are physical items that were presented to prosecutors as evidence,” Boasberg wrote. “Why this reasoning would exclude CDs that hold documents in digital form but not, say, the printer paper that will eventually hold this opinion is beyond the court.”
Also this week, a judge ruled the Justice Department owes $70,000 in legal fees for wrongly withholding docs on a corruption probe. From the ruling (citations omitted):
"It should be noted that in its opening brief on the merits, DoJ took the position that there was no public interest in the requested records. Despite the fact that DoJ certainly knew that its investigation was mandated by enactment of the highly unusual Congressional legislation, it still persisted in arguing that
Plaintiff "fail[ ed]. to identify any cognizable public interest" and has "no valid public interest to point to. This conclusion was plainly unreasonable. It is particularly hard to take seriously given the fact that, during the period of time in question, Representative Young was Chair of the House of Representative Transportation Committee, and presented detailed remarks on the House floor about the Coconut Road Earmark project.
The only bright spot for the government this week in FOIA lawsuits: A judge refused to appoint a special forensics expert to investigate ex-IRS official Lois Lerner's lost emails.
Water damage: The FBI lost at least 50,000 documents due to flooding.
Snowden docs: Cryptome put in a FOIA request at the Defense Intelligence Agency for docs on Ed Snowden. It might be a while before that request is completed, though. According to the response letter [PDF] from DIA to Cryptome, its request is currently number 1,139 in line to be completed.
Interim FOIA release of Aaron Swartz's Secret Service file: Courtesy of Wired's Kevin Poulsen.
Part One [PDF]
Part Two [PDF]
Asset Forfeiture: Muckrock delves into asset forfeiture by local police agencies.
FOIA Reform: Lawfare has a thorough rundown of the FOIA Improvements Act and what exactly it aims to do.
CFPB official tried to shield bank docs from FOIA: Docs uncovered by watchdog group Cause of Action show an official at the Consumer Financial Protection Bureau tried to shield bank responses to customer complaints from FOIA release.
The official asked CFPB employees to “craft a letter or bury something in the manual” to keep the communications private. When informed that this would be difficult, he responded, “you're absolutely killing me ... I would really appreciate if in the back of your heads you could think about how to creatively solve this puzzle.”
Meanwhile across the pond: 'UK judge says Freedom of Information means choice of digital file format'
The Most Transparent Administration in History, an ongoing series
The Columbia Journalism Review weighed in this week on the ongoing friction between the press and the Obama administration. This part stuck out:
"Nearly three of four journalists who cover the federal government believe public information officers are tightening press controls, according to a study to be presented Wednesday at a conference for the Association for Education in Journalism and Mass Communication. More than three quarters of local, state, and national political reporters, meanwhile, said the public is not getting the full truth because of it. And about 40 percent of public information officers surveyed admitted they deny specific reporters access.
"'That horrified us that so many would do that,' Kennesaw State University professor and study author Carolyn Carlson said. The decades-long professionalization of public relations has coincided with journalists’ perceived reduction in access, she added. 'Twenty years ago, members of Congress might have had a press secretary, but they didn’t have an entire public relations office.'
"Indeed, a July 1 USA Today analysis found that House committees had grown their PR ranks by 15 percent since 2010, despite a 20 percent overall staff cut."
Meanwhile, not everyone is upset at these new policies. In fact, environmental groups are quite pleased with the performance of the EPA's public affairs office and its chief Tom Reynolds, a former Obama campaign staffer, E&E; reports:
"Reynolds' tactics have won him acclaim among some in the environmental community, who have applauded the media strategy behind rolling out big EPA policies, like the power plant rule.
"'Tom Reynolds' leadership at EPA has been very valuable in the unveiling of climate science and climate policy,' said Daniel Weiss, senior vice president for campaigns at the League of Conservation Voters.
"'My experience with him and his staff is that they are creative, even-keeled and dedicated to communicating as much as possible with everyday Americans about the costs of climate change and the policies to address it,' Weiss said."
One can't fault interest groups for putting their raison d'etre ahead of other principles, but it will make their inevitable complaints about secrecy harder to take in good faith when an administration opposed to those interests takes control sometime down the line.
WHISTLEBLOWER NEWS
EVENTS
Today at Defcon: Ryan Shapiro on How to Hack the FBI: How and Why to Liberate Government Records
Tomorrow at Defcon: EFF's Nate Cardozo on How to Get the Government to Spill its Guts
Aug. 19: Restore the Fourth Chicago hosts FOIA workshop
Sep. 10: Virginia Coalition for Open Gov hosts record management workshop in Richmond
STATE NEWS
The San Diego District Attorney keeps a list of cops it considers unreliable witnesses. Naturally, the San Diego D.A. rejected records requests for the names on the list. You know, to protect the identity of officers whom the D.A. considers likely to perjure themselves. From the San Diego U-T:
"The Watchdog sought the information in advance of a civil trial requested by a woman known as Jane Doe, who was violated in a 7-Eleven bathroom by former San Diego police officer Anthony Arevalos.
"The case, scheduled to begin Aug. 12 in U.S. District Court, focuses on police trustworthiness and officer misconduct.
"Among other things, Doe and her lawyers allege San Diego police command staff knew about previous complaints against Arevalos and did nothing to stop him from preying on young women.
"The city has paid $2.3 million to settle 12 lawsuits filed by victims of Arevalos, who is now serving eight-plus years in prison, although that may be reduced because the most serious charge against him was overturned on an evidentiary issue."
Meanwhile, Massachusetts bill seals police reports in domestic violence cases. A reader writes in: "These types of records were critical to Globe reporting on lax policing that led to murder by a former Red Sox employee, and the cover up of a police chief's domestic violence history. In other words, it really hurts public accountability to stop this stuff from festering."
This is all quite depressing, so in case you needed a good laugh: the NYPD says it responds to "nearly all" F.O.I.L. requests. As the linked article notes, a 2013 review by then-NYC Public Advocate Bill de Blasio found the NYPD ignored nearly a third of all F.O.I.L requests.
More state news ...
Subscribe to CJ Ciaramella's weekly FOIA newsletter here.