Dear Friend of Press Freedom,
I’m Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF), and welcome to The Classifieds. Read on to learn about the week’s top secrecy news.
The first FOIA felon
David Morens, the former senior National Institutes of Health official who bragged that he “learned from our foia lady here how to make emails disappear after i’m foia’d,” has pleaded guilty to a felony count of conspiracy to defraud the United States by obstructing Freedom of Information Act compliance. He will be sentenced on Nov. 12, facing up to five years in prison and a $250,000 fine.
As I’ve said before, what Morens did was “egregious and wrong.” Yet it’s impossible to ignore the hypocrisy of the Department of Justice’s aggressive prosecution of Morens, while simultaneously making public access to records across the executive branch — from agency records to the president’s — much harder.
Typically, FOIA evasion or noncompliance is treated as a civil matter, not a criminal one. For example, neither former Secretary of State Hillary Clinton’s use of a private server nor an ever-growing number of Trump officials’ use of disappearing messaging applications to subvert the records law have resulted in criminal convictions.
And when President Bill Clinton’s former National Security Adviser Sandy Berger was criminally charged for stealing classified records from the National Archives, it was for unauthorized removal of classified material, not FOIA evasion. Berger also didn’t face any jail time, instead performing 100 hours of community service.
The DOJ broke that precedent with Morens by treating his FOIA evasion as a conspiracy to defraud the United States government under Title 18 of the U.S. Code — making it a criminal case.
Because FOIA evasion has typically been treated as an administrative matter, FOIA enforcement is largely toothless, and compliance continues to deteriorate across the federal government. However, it’s extremely unlikely that pursuing criminal convictions against individual officials is going to result in systemic improvement.
Perhaps we should move toward a future where there are harsher punishments for evading FOIA. But targeting individual bad actors with relatively little power to change their agency’s overall culture isn’t going to be effective.
A better alternative for improving compliance would be imposing meaningful financial penalties at the secretary or director level for systemic failures in agency FOIA offices. This could force cabinet-level leadership to genuinely invest in transparency — rather than just opening agency books when it relates to the administration’s favorite political controversies.
DOJ defends mass FOIA closure policies
Meanwhile, as the Justice Department pursues individual bad FOIA actors in court, it defends an entire agency — the Energy Department — that was attempting to unlawfully close as many FOIA requests as possible at once. Luckily, a federal judge recently struck down that attempt.
Last August, the Energy Department published a notice in the Federal Register notifying FOIA requesters that it would send out “still interested” letters for all requests received before Oct. 1, 2024. If responses were not received within 30 days, the requests would be closed — even though current Justice Department guidance says “still interested” letters should be sent as sparingly as possible.
The agency argued this extraordinary step was necessary to clear its backlog — and apparently this was the go-to move, rather than investing more resources and improving FOIA processing policies.
That’s why watchdog organization American Oversight sued — and won. U.S. District Judge Amy Berman Jackson noted in her ruling that nothing in the FOIA statute allows an agency to close a request simply because it doesn’t receive a response to a “still interested” letter: “If anything, the plain text of FOIA suggests the opposite.”
While the proposed rule was struck down, agencies like the Defense Department still send annual “still interested” letters to reduce their backlogs. Requesters who receive these letters, or have their requests closed for not responding, should cite Jackson’s ruling in their appeals.
American Oversight is continuing its efforts to end a similar practice at the U.S. Agency for International Development.
What I’m reading
The $1 trillion black box
With laughably broad outlays, like $32.6 billion for “Other Procurement, Air Force” and $35.3 billion for “Research, Development, Test and Evaluation, Defense-Wide,” the Defense Department’s $1 trillion budget is inscrutable and nearly impossible to parse. But ProPublica is going to try, and if you’ve ever worked in defense budgeting or contracting, it needs your help.
Smart glasses are catching on with U.S. police
Sophisticated surveillance technology continues to creep into routine police work. FOIA responses posted to MuckRock show that two sheriff’s offices in Florida, apparently inspired by ICE’s quest for “ICE glasses,” have procured Ray-Ban Meta smart glasses.
ICE worked with Iranian regime to set up deportation flights as Trump laid plans for war
FOIA releases obtained by the National Iranian American Council indicate that U.S. immigration agents worked with “government officials in Iran to deport over 100 Iranian nationals as the United States prepared to bomb their home country.”
Transparently yours,
Lauren Harper
Daniel Ellsberg Chair on Government Secrecy
Freedom of the Press Foundation
