FBI Tells Orlando Law Enforcement Not to Respond to Records Requests as FOIA Turns 50: A Supersized FRINFORMSUM 6/30/2016

50 stories brought to you by FOIA.

The Freedom of Information Act turns 50 on July 4, and the President will likely sign meaningful FOIA reform into law on Independence Day. To celebrate the occasion, we are highlighting 50 of this year’s biggest headlines made possible by FOIA. Did you know that FOIA showed that federal marshals inappropriately used classification labels to hide controversial cell phone surveillance practices? Or that FOIA revealed that the Postal Service’s surveillance program, mail covers, failed to follow key safeguards? These stories and dozens more can be found at the National Security Archive.

Looking ahead, the Sunlight Foundation’s Alex Howard has seven ideas how to build on the impending FOIA reforms that won’t (for the most part) require additional legislation. These ideas include encouraging FOIA processors to pick up the phone and contact requesters, better FOIA training, and asking for requester feedback. In 2015 the FOIA Advisory Committee distributed an important fee survey – but only to FOIA processors; according to the Committee, “logistical problems, problems about doing polls and publishing results” made it impractical to distribute a similar poll to the public. This prompted the National Security Archive and the Project on Government Oversight to distribute our own, similar survey to FOIA requesters to provide a more balanced view. While bureaucratic red tape is a real obstacle, this is the kind of requester data that the government should actively be collecting and analyzing.

CJ Ciaramella has a good piece on Congressman John Moss, the father of the FOIA. Among other quotables Ciaramella notes, “By the mid-1960s, Moss had been holding hearings for more than a decade about government opacity. All told, 27 federal agencies testified on his proposed transparency legislation, all of them in opposition. The Department of Justice said the FOIA would be unconstitutional — that it violated the separation of powers. Yet by 1966, Moss had acquired a critical mass of support for the FOIA among liberal Democrats and Republicans eager to needle the Johnson administration, such as a young Republican named Donald Rumsfeld, who co-sponsored the bill.”

Visit the National Security Archive’s FOIA-at-50 posting for a collection of the Archive’s seminal postings on FOIA’s history.

The State Department wanted to close our request within 15 days.

The FOIA ombuds, the Office of Government Information Services, posted a good blog this week highlighting the State Department’s recent efforts to issue “still interested” letters in accordance with Justice Department guidance. The guidance requires agencies, among other things, to give requesters at least 30 days to respond to the letter before closing a request. OGIS contacted the State Department in May after the National Security Archive’s Nate Jones posted on social media that the State Department sent him a “still interested” letter that only gave him 15 days to respond.  It is to OGIS’s credit that they confronted the State Department about its failure to comply with DOJ guidance and it is to the State Department’s credit that it has changed its policy to give requesters at least 45 days to answer a “still interested” letter. The fact remains, however, that nothing in the FOIA statute grants agencies the authority to administratively close a request in such a fashion.

The FBI is telling the Orlando law enforcement agencies that responded to the Pulse nightclub shooting not to respond to records requests on the massacre, and to “immediately notify the FBI of any requests your agency received.” The FBI also recently denied the Orlando Sentinel’s FOIA request for information on the shooting.

This isn’t the first time the FBI has tried to co-opt Florida’s strong public records law. In 2012 the FBI demanded that the University of South Florida (USF) “immediately return copies of e-mails from one of its agents” concerning disgraced associate professor Dajin Peng. The agent, Dianne Mercurio, had been in contact with Peng since 2009, encouraging him to spy on connections Peng had high within Chinese intelligence circles, and leveraged Peng’s tenuous position at USF, where he was being investigated for falsifying expense accounts, making inappropriate advances towards female colleagues, and keeping explicit material on a USF computer, to compel him to keep spying. Fortunately, USF followed Florida’s open government law and released Mercurio’s e-mails in response to a request from Bloomberg News, rebuffing (in this case) the FBI’s efforts to keep the records secret.

A federal judge ruled that the Drug Enforcement Administration’s explanation for withholding the names of companies and federal agencies involved in Operation Hemisphere from an EPIC FOIA lawsuit was “legally insufficient,” and ordered the DEA to either provide the records or specific reasons for withholding them. The New York Times reported in 2013 that under Operation Hemisphere the government pays AT&T, the only company identified to date as a participant, for access to an enormous database “that contains the records of decades of Americans’ phone calls” and “covers every call that passes through an AT&T switch — not just those made by AT&T customers.” Approximately four billion call records are added to the AT&T database daily, and the records include information on the locations of callers. The scale and longevity (the AT&T records go back to 1987) of Operation Hemisphere “appears to be unmatched by other government programs, including the N.S.A.’s gathering of phone call logs under the Patriot Act.” Courthouse New Service notes that “The judge also rejected the DEA’s argument that knowing which federal agencies used Hemisphere would help criminals avoid detection via the program.”

ACLU petitions for en banc review.

The American Civil Liberties Union has filed a petition in the DC Circuit Court of Appeals, asking it to rehear its decision denying public access to the Senate Intelligence Committee’s full Torture Report. On May 13, 2016, the appeals court affirmed a lower court ruling that the report “is a congressionally generated and controlled document that is not subject to disclosure under FOIA.” The ACLU petition notes the Torture Report “is a uniquely important agency record” of exceptional importance that warrants en banc review.

U.S. District Court Judge Richard Leon told the State Department that “There’s no way I’m ever going to grant you an extension to mid-October” to release FOIA documents to the AP on “a deal the agency cut with defense contractor BAE Systems while Hillary Clinton was secretary of state.” The initial court-imposed deadline to complete the processing of records related to “a consent decree BAE reached in 2011 settling civil claims over violations of U.S. arms export control laws and regulations” was April 4, later extended to June 13 – although the State Department failed to meet either deadline. Josh Gerstein reports that, “Given the glacial pace of many of the roughly 100 FOIA suits pending against State in the wake of the Clinton email flap, Leon’s schedule for resolving the case seems wildly ambitious.”

FOIA requests to the Department of Housing and Urban Development, along with housing data and interviews with borrowers, show that some of the largest private equity companies that bought billions of dollars of mortgages at steep discounts from HUD during the housing crisis are aggressively pushing homeowners into foreclosure with little federal oversight. A long-form New York Times piece shows that some big private equity companies are making many of the same mistakes banks made in the lead-up to the housing crisis, and that “much of this [private equity] investment has not benefited poor neighborhoods. Banks are expected, under the Community Reinvestment Act, to help meet the credit needs of low-income neighborhoods in areas they serve. Private equity has no such obligation.” The exposé also highlights that at least one private equity company, Nationwide, functions as a “mortgage bill collector, auction house for foreclosed homes and lender to new borrowers. By working every angle, and collecting fees at each step, the company faces potential conflicts of interest that enable it to make money on what is otherwise a costly foreclosure process.”

The NY Athletic Commission failed to protect the safety of fighters like Magomed Abdusalamov. Credit Rich Graessle/Icon SMI, via Corbis.

A 2013 New York State Department inspector general report on the athletic commission – “an odd little agency charged with the considerable responsibility of ensuring the integrity of professional boxing” – released under the FOIA improperly withheld factual information and final agency decisions. The inappropriate withholdings were uncovered when the FOIA release was compared to a leaked version of the same IG report, and paints a picture of a “profoundly dysfunctional agency” that struggles enforcing internal controls, promoting safety, and has “blurred lines of propriety.” One of the passages wrongly redacted from the report summarizes that “It is clear that many of the problems and shortcomings identified in past investigations and audits of the State Athletic Commission continue to exist today.” One day after the report was issued, Russian heavyweight boxer Magomed Abdusalamov was left speechless and partially paralyzed from a televised match, after which agency officials simply instructed his team to find a taxi to take him to the hospital.

Jason Leopold recently reported that a proposed amendment to the annual intelligence spending bill would force the intelligence community (namely the CIA) to account for its relationship with the entertainment industry. The CIA was involved in 22 entertainment projects between 2006 and 2011, most notably the films Zero Dark Thirty and Argo, and an episode of Top Chef.  Leopold notes, “In the case of Zero Dark Thirty, writer and producer Mark Boal and Katherine Bigelow gave CIA officers involved in the operation that resulted in the killing of Osama bin Laden gifts including dinners, fake pearl earrings, a bottle of tequila, and tickets to a Prada fashion show. The filmmakers, in turn, got access.” (The National Security Archive compiled all of the available official documents on the mission to kill bin Laden in 2013 to provide balance to the Hollywood/CIA record). The amendment states clearly, however, that “Neither the production of entertainment nor the self-promotion of Intelligence Community entities are legitimate purposes for these engagements.”

District Court of D.C. Judge Royce C. Lamberth will address the American Society of Access Processionals 9^th annual training conference this July. In 2015 Lamberth, who has a strong track-record on FOIA, railed against the Environmental Protection Agency’s (EPA) FOIA performance in connection with a FOIA lawsuit seeking “documents covering communications with groups and individuals concerning potential EPA regulations.” Earlier this year he also granted Judicial Watch discovery in pursuit of “details about how Hillary Clinton’s private email account was integrated into the State Department recordkeeping system and why it was not searched in response to a Freedom of Information Act request.” Lamberth cited the government’s wrongdoing and bad faith in his ruling, and chastised the “constantly shifting admissions by the Government and the former government officials.” The Archive’s Robert Wampler will also be at the training conference, co-presenting the“Deciphering Exemption 1” breakout session on Wednesday, July 20 from 9:15-10:30 am with Paul Jacobsmeyer from the DOD’s FOIA Office.

This week’s #tbt pick is chosen in honor of FOIA’s upcoming anniversary and is the text of Bill Moyers’ keynote address at the National Security Archive’s 20^th anniversary party, “In the Kingdom of the Half-Blind.” Moyers was the White House Press Secretary when  LBJ grudgingly signed the FOIA into law in 1966, although the momentous event doesn’t even appear in LBJ’s daily journal – see below.

No sign of the FOIA signing anywhere on LBJ’s calendar.

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Happy FOIA-ing!