Still Fighting for FOIA After All These (51) Years: FRINFORMSUM 7/6/2017

The signing statement from left to right: LBJ’s handwritten edits, Bill Moyers’s edits, and the final iteration.

FOIA at 51

The Freedom of Information Act turned 51 this July 4, and the public is still fighting tooth-and-nail for its right to know decades after the law went into effect. This calendar year alone the National Security Archive has filed suit against the Trump administration four times – including for access to the White House visitor logs and to prevent the destruction of Presidential records by Trump and his staff. As the Des Moines Register’s Editorial Board notes in a history of the law, “As with many of the rights we cherish, we must tirelessly work to ensure the public’s access to public information is protected.”

Another excellent article on the history of the FOIA was recently published in the US News and World Report.

The National Security Archive’s history of LBJ’s signing of the Freedom of Information Act can be found here, and the Archive’s “Essential FOIA Resources” can be found here.

Anticipated Medicare Data Will Not be Released

Centers for Medicare and Medicaid Services’ officials have scrapped plans to release data on Medicare Advantage plans, which allow participants to enroll in “privately run health plans run by Medicare” that enroll “more than a third of the 58 million beneficiaries of the Medicare program.” The release was long-awaited by researchers, but CMS reported that “there were enough questions about the data’s accuracy that it should not be released for research use.” Critics responded that if the data was good enough to be used for processing payments, it should be good enough to be released to the public.

Last year the Center for Public Integrity reported, thanks to a FOIA lawsuit, that many Medicare Advantage providers were overcharging Medicare – to the tune of $70 billion from 2008 to 2013. More publicly available information could prevent such gross overcharging.

No Classified Presidential Directives from Trump

President Trump has not issued a single classified presidential directive on national security in the nearly six months he has been in office, reports Steve Aftergood of Secrecy News. Aftergood notes that it is “a departure from past practice in previous Administrations” and the reasons behind it are unclear. Aftergood speculates that the president may have delegated aspects of national security decision-making elsewhere, or that there is no national security policy to speak of.

Trump has issued five unclassified National Security Presidential Memorandums, the most recent one being a June 16 memo reversing steps towards normalization of relations with Cuba. “The June 16 NSPM-5 directed the Secretary of State to publish it in the Federal Register. But three weeks later, even that simple task has still not been carried out.”

“Overview of the 9/11 Investigation”

Miami U.S. District Judge Cecilia Altonaga. Photo: Federal Bar Association, South Florida Chapter

Federal Judge Cecilia Altonaga recently reversed her own May 2017 ruling and issued a new order allowing the FBI to keep secret a document from the 9/11 Review Commission concerning funding for the terrorist attack; Altonaga also ruled out holding a FOIA hearing “to evaluate the need for such continued secrecy nearly 16 years after the 9/11 attacks.”

The ruling stems from a 2016 lawsuit brought by the Florida Bulldog’s parent company, Broward Bulldog Inc., which sued the FBI for 9/11 Review Commission records. The suit “forced the FBI to review 1,858 pages of records and to release parts of 713 pages. The FBI withheld 1,145 pages.”

One of the key records released in part this February is a 60-page document, “an FBI slide show titled ‘Overview of the 9/11 Investigation.’” The bureau argued that the heavily redacted document was exempt from release pursuant to FOIA exemption b(7)(E), which protects law enforcement techniques and procedures. This May Altonaga ruled that the bureau “failed to meet its burden in establishing Exemption 7(E) applies to the redacted information” in the 9/11 Overview because “much of it does not discuss any FBI investigative techniques and procedures; instead the material often encompasses facts and information gathered FBI suspects.”

The Florida Bulldog reports,“Altonaga’s new order doesn’t address that argument, but nevertheless sided with the FBI, saying the redactions are ‘necessary to prevent disclosure of FBI techniques or procedures.’”

Former Florida Senator Bob Graham, who led the Joint Inquiry into Intelligence Community Activities before and after the Terrorist Attacks of September 11, 2001, said, “The court essentially accepted without detailed substantiation the FBI’s assertions that techniques and procedures would potentially be compromised. I believe a trial was needed at which those unsubstantiated statements would be challenged with questions such as, ‘Over the 16 years since the events of 9/11 occurred have these techniques and procedures which proved to be so ineffective in preventing 9/11 been continued?’”

Broward Bulldog Inc. is considering an appeal.

Reverse FOIA Suits Face Test in California

The Marin-County based First Amendment Coalition is filing a challenge to a reverse FOIA lawsuit filed by suspended Milpitas city manager, Tom Williams. Public records show Williams, who was suspended in mid-May and has publicly been feuding with Mayor Rich Tran, used a city credit card to pay his lawyer $7,000 and tried to use another $30,000 of public funds to cover additional legal costs. News organizations filed public records requests about the dispute, and Williams quickly filed a reverse California Public Records Act suit. Williams is also asking the city for $1 million in emotional distress and damage to his reputation caused by public statements by the mayor.

The California News Publishers Association last year requested lawmakers put in end to reverse-CPRA suits with legislation, but that process is on hold as three CPRA appeals make their way through the appellate courts.

New CIA Records Schedule 

An April 2017 NARA Federal Register notice indicates that several agencies, including the CIA, have new records schedules; the CIA items relate to “human resources, employee medical files, information management, intelligence collection and operations, and security records.” Per the instructions in the notice, researchers should contact NARA for the new schedules.

US-UK FOIA Differences

A good article comparing the history of enactment between the UK FOIA law in 2000 and the US Freedom of Information Act in 1966 will be a fun read for document hounds. The National Security Archive’s Nate Jones’ is heavily-cited in the article, noting “The bottom line is that the US law has generally grown stronger over time – though with steps backwards as well.” Of the UK FOI legacy and Tony Blair’s introduction of the bill, Maurice Frankel, chairman of the Campaign for Freedom of Information, says “I’m sure most people can think of at least one decision that Tony Blair made while he was Prime Minister that was a far bigger mistake than the Freedom of Information Act.”

TBT pick – Declassified Record on North Korean Nuclear Weapons

What did the US know about the North Korean nuclear weapons program in 2003? A posting from the National Security Archive’s vault, “North Korea and Nuclear Weapons: The Declassified U.S. Record,” has some insights, but as the Archive’s Korea expert Dr. Robert Wampler notes, “Compared to what is available on Iraq and other suspected proliferating governments, there is a serious lack of declassified documents on this issue that can help the public and scholars understand and analyze the historical development of U.S. policies on the North Korean nuclear program.”

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Happy FOIA-ing!