House Poised to Pass FOIA Amendments

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it “would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters.”

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that “would adversely affect intelligence sources and methods” that are protected. The term “adversely affect” is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won’t produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded– with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

DoD Seeks FOIA Exemption for Military Doctrine

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy“significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

Competencies of Intelligence Community Employees

Employees of the U.S. intelligence community are expected to be bold, innovative and imbued with moral courage.

At least, those are the desired qualities that are defined in a series of Intelligence Community Standards (ICS) first issued in 2008 that have just been released under the Freedom of Information Act.

Even a non-supervisory employee at levels GS-15 and below is expected (under ICS 610-3) to demonstrate creative thinking (he or she “designs new methods and tools where established methods and procedures are inapplicable, unavailable, or ineffective”); to consider alternative points of view (she “seeks out, evaluates, and integrates a variety of perspectives”); and to display intellectual integrity (he “exhibits courage when conveying views, presenting new ideas, and making/executing decisions irrespective of potentially adverse personal consequences. Does not alter judgments in the face of social or political pressure.”).

Higher-level, supervisory personnel are to do all of that, and more (ICS 610-4).

And senior officers (ICS 610-5) “are expected to personally embody, advance and reinforce IC core values: a Commitment to selfless service and excellence in support of the IC’s mission, as well as to preserving, protecting, and defending the Nation’s laws and liberties; the integrity and Courage (moral, intellectual, and physical) to seek and speak the truth, to innovate, and to change things for the better, regardless of personal or professional risk.”

Considering the state of the species, it would be remarkable if more than a small fraction of the IC workforce comes close to meeting the lofty standards for performance and conduct that are described here. But perhaps these statements of expectations themselves serve a wholesome, instructive purpose, making their own fulfillment somewhat more likely.

And the standards are more than rhetorical flights. They are to be used (pursuant to Intelligence Community Directive 610) for “qualification, training, career development, performance evaluation, [and] promotion.”

Principles for Implementing IC IT Enterprise

The guiding principles for implementing and operating the Intelligence Community (IC) Information Technology Enterprise (ITE) were set forth in a 2013 memorandum from the Director of National Intelligence that was recently released under the Freedom of Information Act.

The purpose of IC ITE (pronounced “eye sight”) is to establish a common information architecture for the entire U.S. intelligence community, thereby fostering integration and making information sharing among agencies the default option.

“Information acquired, collected, or produced by IC elements shall be available for access for all IC missions and functions, subject to applicable legal and policy requirements,” the 2013 DNI memo said.

Once available through IC ITE, however, access is still to be limited by need-to-know. “Determinations about access to and use of such information within IC ITE shall continue to be based upon content and mission need.”

Nevertheless, agencies are expected and required to make “their” information available to the larger IC. “Unless a discovery exemption has been obtained, originating IC elements shall authorize and provide for automated discovery and retrieval of intelligence and intelligence-related information in IC ITE.”

“IC ITE moves the IC from an agency-centric IT architecture to a common platform where the Community easily and securely shares technology, information, and resources,” according to an ODNI fact sheet. “These new capabilities, with seamless and secure access to Community-wide information, will positively and deeply change how users communicate, collaborate, and perform their mission.”

IC ITE technically “went live” in 2013, but it is still at an early stage of development.

“The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities,” the Senate Intelligence Committee noted in a report earlier this year.

CIA Reviews “Operational Files” Exemptions from FOIA

The CIA Information Act of 1984 authorizes the Director of the Central Intelligence Agency to designate certain Agency records as “operational files.” Doing so makes them exempt not only from disclosure, but even from search and review under the Freedom of Information Act.

The 1984 Act also requires the Agency to perform a “decennial review” at least every ten years in order to determine whether any of the designated operational files exemptions can be rescinded, so that the affected files would become subject to a regular FOIA search and review.

The third such decennial review is now underway.

The CIA is soliciting public comments to help identify categories of Agency records that are of particular historical or public interest value and that have been exempted from normal processing under the FOIA as operational files. Comments are due on May 1, the CIA said in an April 20 Federal Register notice.

The first decennial review of the operational files exemption, completed in 1995, led to the opening of four file categories to FOIA search and review.  The second decennial review, completed in 2005, yielded no newly opened file series but did lead to the designation and exemption of 23 new operational file categories. This was an outcome not contemplated in the statute (50 USC 3141(g)), which says nothing about using the decennial review to create new exempted categories. (Secrecy News, April 19, 2006).

In comments submitted to the CIA today, the Federation of American Scientists offered several suggestions for consideration in the current decennial review, including these:

*    The operational files exemption should not be applied to any records that are 25 years old or older.

*    Clandestine service history records and records of imagery analysis should be removed from the operational files category.

*    Files pertaining to civilian casualties of CIA operations (including covert actions) should not be exempted from regular FOIA processing, nor should records of CIA interrogation and detention practices be considered exempted operational records.

Justice Dept Updates its FOIA Regulations

The Department of Justice last week published newly updated regulations on implementation of the Freedom of Information Act, with several notable changes made in response to public comments.

Fifteen sets of comments were submitted by individual members of the public or public interest organizations after the Department released its draft FOIA regulations in 2011. In a lengthy Federal Register notice on April 3, the Department addressed all of the comments, and actually adopted a number of the changes recommended by public commenters.

Among the changes that were approved:

*    The revised regulations explicitly include news organizations that operate solely on the Internet as “representatives of the news media,” making them exempt from search fees.

*    “The revised fee schedule includes a decrease in duplication fees due to advances in technology.”

*    The revision adds language specifying that “in responding to requests for classified information, the component [of DoJ to which the request is addressed] must determine whether the information remains currently and properly classified.”

Some other new provisions should make it easier to use the FOIA, including a procedure for consulting with the Department’s FOIA Public Liaison in advance of making a request. The revised regs also incorporate a statement of policy that would “encourage discretionary releases of information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption.”

It nevertheless remains true that in order to take full advantage of the tools provided by the Freedom of Information Act, it is often necessary for requesters to litigate over information that is withheld or denied.

According to The FOIA Project, there were 422 Freedom of Information Act lawsuits filed in federal district court last year, up from 372 the year before and 342 the year before that.

FOIA Reform Legislation, and More from CRS

Two companion bills pending in the House and Senate would amend the Freedom of Information Act “for the purpose of increasing public access,” a new analysis of the legislation from the Congressional Research Service explains.

Among other things, “both the House and Senate legislation would establish a statutory ‘presumption of openness,’ whereby information may only be withheld if it harms an interest protected by a statutory exemption or if disclosure is prohibited by law.”

While both bills “address a number similar topics, often in similar ways, there are substantive differences between them.” The similarities and the differences in the pending bills are summarized in the new CRS report. See Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis, February 26, 2015.

Other new or updated CRS publications that Congress has withheld from online public disclosure include the following.

Email Privacy: District Court Rules that ECPA Warrants Apply to Electronic Communications Stored Overseas, CRS Legal Sidebar, March 4, 2015

U.S. Periods of War and Dates of Current Conflicts, February 27, 2015

Military Service Records and Unit Histories: A Guide to Locating Sources, February 27, 2015

The Nunn-McCurdy Act: Background, Analysis, and Issues for Congress, March 3, 2015

Growth in Health Spending Remained Relatively Low in 2013, CRS Insights, February 27, 2015

Legislative Actions to Repeal, Defund, or Delay the Affordable Care Act, March 2, 2015

Implementing the Affordable Care Act: Delays, Extensions, and Other Actions Taken by the Administration, March 3, 2015

Foreign Heads of State Addressing Congress, CRS Insights, February 27, 2015

Israel: Background and U.S. Relations, February 27, 2015

Egypt: Background and U.S. Relations, March 3, 2015

Cuba: Issues for the 114th Congress, February 27, 2015

Locate an Agency or Program Within Appropriations Bills, February 27, 2015

The EMV Chip Card Transition: Background, Status, and Issues for Congress, February 26, 2015

Teenage Pregnancy Prevention: Statistics and Programs, February 26, 2015

Genetic Testing: Background and Policy Issues, March 2, 2015

 

New Literature on Secrecy

National security secrecy, which remains a source of conflict and consternation, inspires a steady flow of books and journal articles. As in other policy-related fields, much of this literature is tendentious, derivative or dull. Some of it is insightful, original or usefully provocative.

Most works naturally occupy a middle ground including both virtues and defects. Two highly original works on secrecy in recent years — Daniel Patrick Moynihan’s Secrecy: The American Experience and Garry Wills’ Bomb Power — also have significant conceptual flaws and factual errors. That is to say, it is hard to write a good book about secrecy.

With that in mind, here are some notable recent additions to the literature.

**     Secrecy in the Sunshine Era: The Promise and Failure of U.S. Open Government Laws by Jason Ross Arnold (University Press of Kansas, 542 pages, 2014).

This is a study of the impact of laws such as the Freedom of Information Act and the Federal Advisory Committee Act. It presents a survey of how these open government laws were implemented through successive administrations and how they were sometimes circumvented.

“The sunshine laws of the 1970s substantially revised the way information flowed through the American political system,” writes Arnold. “It is hard to deny that the new legal framework placed serious constraints on executive branch officials.”

Nevertheless, “excessive secrecy still reigned in the sunshine era,” he concludes. “All administrations did what they could… to twist around the statutes when they deemed it necessary. All diverged from their own pro-transparency rhetoric and rules.”

**     A Proposal to Reduce Government Overclassification of Information Related to National Security by Herbert Lin, Journal of National Security Law & Policy, Vol. 7, No. 3, 2014.

This article focuses on the perennial problem of overclassification and proposes a solution. It would seek to alter the incentives that currently favor (over)classification by establishing new incentives to reduce classification.

“Classification should not be a free good,” Lin writes. He defines a classification cost metric that would reflect the relative importance of different classified documents, and that would make it possible to “budget” for classification.

Through the application of appropriate incentives, “Those who actually make decisions about classification should benefit from reductions in the amount of classified information produced.”

The author anticipates several objections to his idea, and offers responses to them.

**     Lords of Secrecy: The National Security Elite and America’s Stealth Warfare by Scott Horton (Nation Books, 272 pages, 2015).

Sometimes secrecy is not simply an annoying artifact of national security bureaucracy, but is itself a weapon in the struggle for power. The use of secrecy in this way is corrosive and has now become disabling to American democracy, according to author Scott Horton.

While most national security attention is focused on threats from abroad, Horton says “the more serious threats to American democracy are internal. They stem from a steady transfer of democratic decision making and authority away from the people and to unelected elites. This has occurred both with respect to the disproportionate grasp of power by wealthy super elites, and by the rise of national security elites who increasingly take the key decisions about national security matters without involving the people in any meaningfully democratic process.”

“More effectively than before, they use secrecy not only to cover up their past mistakes but also to wrest from the public decisions about the future that properly belong to the people.”

CIA Posts Hundreds of Declassified Journal Articles

The Central Intelligence Agency has posted hundreds of declassified and unclassified articles from its in-house journal Studies in Intelligence, in an effort to settle a lawsuit brought by a former employee, Jeffrey Scudder. Until lately, the CIA had resisted release of the requested articles in softcopy format (Secrecy News, March 17), but the Agency eventually relented.

“Of the 419 documents that remain in dispute in Scudder, the CIA has produced 249 in full or in part by putting them up on the CIA website,” the government informed Mr. Scudder’s attorney, Mark S. Zaid, this week. They are posted here. [Update: The preceding link is dead. CIA has integrated the Scudder release into this larger collection of declassified Studies articles].

The newly posted articles cover a wide range of topics, and vary considerably in substance and originality. The CIA said that 170 other articles sought by Scudder had been withheld in full.

Jeffrey Scudder was profiled recently in the Washington Post (CIA employee’s quest to release information ‘destroyed my entire career’ by Greg Miller, July 4, 2014).

CIA Seeks More Time to Declassify Interrogation Documents

The Central Intelligence Agency today asked a court to allow more time to declassify its response to the Senate Select Committee on Intelligence report on CIA rendition, detention and interrogation (RDI) activities, which itself is undergoing a time-consuming declassification review.

“This complex process requires the careful review of over 500 pages of highly classified material. In addition, sufficient time must be allowed not only for coordination with other agencies, but — after completion of declassification review — for implementation of security measures to ensure the safety of U.S. personnel and facilities overseas,” according to a May 15 motion filed by the government in a FOIA lawsuit brought by the ACLU.

“Due to the fluid nature of this process, aspects of which are beyond the CIA’s control, the Agency does not yet have a firm date by which it can complete the processing of the CIA Response [to the SSCI report] and the so-called Panetta Report, although it hopes the declassification review and accompanying processing of those documents can be completed this summer.”

The CIA therefore requested an extension of time to respond, to which the ACLU plaintiffs did not consent.

With respect to the Senate Intelligence Committee report itself, the government promised an “expeditious” declassification review of the executive summary, findings, and conclusions.

“While all declassification decisions are guided by the need to protect national security interests, the President has expressed a clear intent to declassify as much of the executive summary, findings, and conclusions of the SSCI Report as possible, and intends the declassification process to be expeditious,” the government motion said.

According to an April 18 letter from then-White House counsel Katherine Ruemmler, appended to the new motion, “The President supports making public the Committee’s important review of the historical RDI program, as he believes that public scrutiny and debate will help to inform the public understanding of the program and to ensure that such a program will not be contemplated by a future administration.