The CIA’s Covert Operation Against Declassification Review and Obama’s Open Government

[Magda Hassan]

The CIA's Covert Operation Against Declassification Review and Obama's Open Government

FEBRUARY 10, 2012

tags: CIA, FOIA, freedom of information act, joseph lambert,mandatory declassification review, MDR, Obama, Open Government Partnership

by Nate Jones

Joseph W. Lambert, Director of CIA Information Management Services, who signed the CIA's attack on MDR.

This very important Document Friday features a very obscure document, just two pages (59033 and 59034) that the Central Intelligence Agency printed in the Federal Register on Friday, 23 September 2011 without a notice for public comment. These regulations, which the CIA began enforcing in December, are a covert attack on the most effective tool that the public uses to declassify the CIA's secret documents, Mandatory Declassification Review(MDR).
Overnight, without public comment or notice, the Agency decreed that declassification reviews would now cost requesters up to $72 per hour, even if no information is found or released. To even submit a request again, even if no documents are released the public must now agree to pay a minimum of $15.
"A new era of open government?"

Mandatory Declassification Review is an extremely powerful tool because it eventually allows declassification decisions to be removed from the control of the overly-secretive CIA and decided by an independent, rational, democratic, outside entity. First, the requester must request a document under MDR and exhaust his appeal. Then, according to President Obama's executive order on classified information, he can invoke what is sometimes called the "secrecy court of last resort," the Interagency Security Classification Appeals Panel (ISCAP). ISCAP has certainly proven the most effective means that the National Security Archive has used to pry the release of documents from the CIA.
ISCAP is composed of senior-level representatives appointed by the Departments of State, Defense, and Justice, the National Archives, the Office of the Director of National Intelligence, and the National Security Advisor. These senior representatives review classified documents, and vote to determine if some or all of the information can be released without harming US national security majority vote rules. According to the most recent US government report on classification, these officials have overruled agencies certainly including the CIA in more than 65 percent of their decisions since 1996. And now, to avoid this accountability and oversight, the CIA is trying to price users out of turning to ISCAP.
Overclassified 65 percent of the time?!

MDR and ISCAP are certainly more effective tools for requesting documents from the CIA than the Freedom of Information Act (FOIA). After the CIA denies a FOIA request and a FOIA appeal, requesters have the right to go to court, but that's expensive and risky business judges are frequently overly-deferential to dubious CIA claims for the need of secrecy. (For one example, see the CIA's recently brief to a US federal judge stating that it would not release a volume of a three-decade-old history of the 1961 Bay of Pigs debacle because it would "confuse the public." For another, see the CIA's tooth-and-nail fight against releasing a 95-year-old invisible ink recipe, available on google scholar.)
To prevent requesters from an independent review of their requests by ISCAP, the CIA amended its regulations without allowing for public comment, as is required the Administrative Procedure Act to allow charging astronomically high fees to process MDR requests. Even if no documents are found or released, the CIA's rules now allow it to charge up to $72 dollars per hour of review time. Furthermore, each requester must now agree to pay a minimum of $15 dollars before the CIA will even accept their request again, that's regardless if the CIA finds or releases anything.
The end of MDR and independent review??

Compare these exorbitant fees to those charged for FOIA requests. Before the CIA surreptitiously changed its regulations, its MDR fee structure was "in the same amount and under the same conditions as specified in [the Freedom of Information Act] 32 CFR part 1900." The Freedom of Information Act stipulates that public interest, educational, journalism, and other fee waivers must be granted by agencies where applicable. Under the bipartisan 2007 Open Government Act, Senators Leahy and Cornyn crafted amendments to FOIA which now force agencies to forfeit their right to collect some FOIA processing fees when they miss their processing deadline, an extremely common occurrence at the Agency. The CIA's new MDR regulation, which allows it to claim that unlike FOIA, "there are no fee categories in processing MDRs" is clearly a step back for access to government information.
Commensurate? From the American Society of Access Professionals.

Furthermore, the fees the CIA is now charging for MDR reviews are astronomically more expensive than the FOIA fees charged by other agencies. And no other federal agency mandates a minimum payment, especially if no information is found or released. This was certainly not a good-faith effort to recoup costs by the CIA.
Note that "threshold" means where requesters *begin* to pay fees. Alto note, the CIA now charges 50(!) cents per page. From American Society of Access Professionals.


Fortunately, regulations can be repealed. Late last year, an outraged public forced the Department of Justice to withdraw a regulation that would have allowed it to lie to FOIA requesters. The condemnation of Senators Grassley, Udall, Leahy and Representative Smith forced the Department of Justice to recall its damaging regulation. Will Congress act to stop this retrograde regulation as well?
And what about President Obama who recently pledged to the leaders of 46 other countries that he would "streamlin[e] the declassification process throughout the federal government"? What has his administration done to counter this covert, harmful, and anti-openness CIA regulation? Nothing yet. So far it appears that the CIA's sneak attack on the"new era of open government" is flying under White House's radar.
The more that agencies are allowed to issue covert, transparency-stifling regulations without public comment, the closer the United States looks to a "managed democracy." The longer the White House stands on the sidelines as agencies openly defy its instructions on openness, the more it appears that the entrenched secrecy establishment of the United States really is "literally out of control."
Let's fight to reverse these trends, beginning with the repeal of this nefarious CIA attack on open government.
http://nsarchive.wordpress.com/2012/02/1...overnment/

[Peter Lemkin]

Another 'freedom' hard won is now lost to all but the very rich, it seems. I have several FOIA requests on my desk or in my computer, but will have to think twice [or not at all] about them. One of them would, if productive, take many, many hours of searching and thus be very expensive [I'm poor!]; cynical me also imagines that they will charge more for FOIAs they don't want to fulfull. Lastly, to be in debt to the USG is dangerous in the extreme. They have the power to take money from you without asking or even property, also denying services from the USG to you. America has come within the Schwartzchild limit of a 'fascist black hole' and we can no longer get out, I fear, but are doomed to sink for all space-time into the singularity. I hope I'm wrong.

Thanks for that warning.:gossip:

[Peter Lemkin]

Why I'm Suing the FBI, the DoD and the CIA
Friday 17 February 2012
by: Jason Leopold, Truthout | Report

(Photo: kalavinka; Edited: JR / TO)

Over the past year, I've filed dozens of Freedom of Information Act (FOIA) requests with the FBI, CIA, Department of Defense, and other government agencies in hopes of prying loose documents I need to support my investigative reporting efforts on a wide-range of issues and policies.

One of the frustrating realities about the FOIA process is the enormous backlog of requests government agencies have to contend with, which means many months or years could pass before my request is finally processed and I receive a response.

However, a little-known FOIA provision allows requesters to seek an estimated date of completion from government agencies on their FOIA requests. Specifically, the law, as it was amended in 2007, says:

Pursuant to 5 U.S.C. § 552(a)(7)(B), "Each agency shall ... establish a phone line or Internet service that provides information about the status of a request to the person making the request ..., including ... an estimated date on which the agency will complete action on the request."

To demonstrate how effective the law can be when requesters utilize it, I sent an email to Eric Neuschafer, a Department of Homeland Security (DHS) FOIA analyst, last week inquiring about the estimated date of completion on a FOIA request I filed last October for documents related to the role the agency played, if any, in the crackdown on the Occupy Wall Street protest movement.

Neuschafer promptly responded to my query stating, "At this time, it is my best estimate that we will have information ready for release on or around March 15."

But unlike DHS, many other government agencies still refuse to follow the law and provide requesters with estimated dates of completion. Indeed, last December, I first queried David Sobonya, the FBI's public information officer, via email about two separate FOIA requests I filed last year and requested he provide me with an estimated date of completion. [The FOIA requests I filed with the agency are for documents I am trying to obtain that will help flesh out an investigative story I have spent the past year working on.]

Sobonya responded to my email on December 29 by stating, "due to the voluminous requests that the FBI receives on a daily, weekly, monthly and annual basis a specific time frame for completion cannot be provided."

I sent Sobonya another email, citing the section of the law requiring he provide me with an estimated date of completion for my two outstanding FOIA requests, which he said was still in the hands of a "disclosure analyst."

Sobonya responded to that email by inadvertently sending me a note addressed to "Denny" that was clearly intended for Denny Argall, the FBI's public liaison officer.

"I feel this will be the new trend," Sobonya said of my request for an estimated date of completion, which he was required to provide me with under the law. "The assigned disclosure analyst advised that an estimated date for completion cannot be provided. How do you wish for me to respond?"

I advised Sobonya that he clearly sent me an email intended for someone else. He replied to my email by saying he would try and obtain answers to my request for estimated dates of completion for my two FOIA requests. But he never did. Sobonya said my FOIA requests were being "processed in the 'First-in/First-out' order and that we are not able to give an estimated date of completion."

We went back and forth via email several times over the course of a few weeks. Again and again, I cited the law and demanded Sobonya provide me with an estimated date of completion. Eventually, he stopped responding to my queries altogether and his superiors in the Records Information/Dissemination Section (RIDS) did not return my calls or respond to my emails.

So, on Tuesday, I sued the FBI in US District Court for the District of Columbia. I hooked up with the Arlington, Virginia-based public interest law firm National Security Counselors, and we also sued the CIA, the Department of Defense, Department of Justice, Department of Energy, Department of Treasury, the Office of Director of National Intelligence and the National Archives and Records Administration, alleging the agencies had violated 5 U.S.C. § 552(a)(7)(B) of the FOIA by failing to provide the National Security Counselors with estimated dates of completion for separate FOIA requests.

As our lawsuit states, the agencies' "repeated refusal to provide estimated dates of completion represents an ongoing policy, practice, or Standard Operating Procedure (SOP)."

"A policy, practice, or [Standard Operating Procedure] of refusing to provide estimated dates of completion to requesters is in violation of FOIA," our complaint further states. "Such a practice constitutes outrageous conduct for purposes of the broad equitable powers provided by FOIA to the Court. Such a policy is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law."

We want the District Court to find the FBI and other government agencies named in the lawsuit in violation of its statutory responsibilities under FOIA and to issue an injunction compelling those agencies to provide requesters with estimated dates of completion when asked.

It's worth noting that less than two weeks before we filed our lawsuit, the government's own FOIA ombudsman published a blog post entitled, "How to Invite a FOIA Lawsuit," which said, "failing to give a requester an estimated date of completion" can be "litigation invitations."

The 2007 amendments to FOIA require agencies to provide requesters with an estimated date of completion, but many agencies still do not do so. When asked why, agencies report that they have not determined how best to accurately compute an estimated completion date or that they are reluctant to provide an estimated completion date: if the date is not met it would open up a whole set of other problems related to revising the estimated date of completion and to maintaining or re-building rapport with the requester and agency officials if the dates slip.

Aside from the fact that FOIA requires agencies to provide requesters with an estimated date of completion, providing estimated completion dates can be advantageous to agencies. First, an estimate is just that, an agency's educated guess based on the information it has available at that point in time. Estimated completion dates can also keep an agency on track and in tune with its FOIA process. For example, if an agency figures out how much time it takes for each stage in the FOIA process, it makes it easier to manage its FOIA case load by recognizing bottlenecks in the process. When requesters are given an estimated date of completion, it helps to manage their expectations of when they will receive a response to a request.

This is not the first time Kel McClanahan, the executive director of National Security Counselors and the attorney handling our lawsuit, has sued government agencies for failing to provide FOIA requesters with estimated dates of completion.

In February 2010, his firm filed a lawsuit on behalf of British author Gregg Muttitt, who was writing a book about the role the US and UK governments played in the development of Iraq's oil law. Among other claims, the lawsuit, Muttitt v. United States Central Command, Department of Defense, Department of State, and Department of the Treasury, argued that the State Department refused to provide Muttitt with an estimated date of completion on his FOIA requests.

Last September, the US District Court for the District of Columbia held in that case that a repeated failure of an agency to provide estimated dates of completion would constitute a viable claim in a FOIA lawsuit.

McClanahan, who had previously weighed in on a story I had published last month about a secretive process the FBI employs for certain FOIA requests known as "blackballing," told me that one of the "primary concerns that Congress sought to address when it passed the OPEN Government Act in 2007 was the widespread inability of FOIA requesters to receive any feedback from agencies during the processing of their requests."

"For this reason, Congress chose to include a requirement that all agencies must provide any requester who asked with an estimated date on which they would complete the processing of their requests," McClanahan said. "However, many agencies were slow to implement the new mandate, and when challenged they fought back. So the purpose of our lawsuit is to attempt to close the door on all possible loopholes or alternative interpretations that agencies can develop to avoid complying with what is a very clear statutory requirement, as well as signaling to all agencies that the Muttitt case was not a fluke and that all agencies are required to provide this vital information to requesters," McClanahan added.

Despite the new era of transparency and open government President Obama promised three years ago, "his administration has been just as secretiveif not more sothan his predecessors, and the Freedom of Information Act (FOIA) has become the prime example of his administration's lack of progress," the Electronic Frontier Foundation (EFF) noted last month.

When Attorney General Eric Holder issued new FOIA guidelines in March 2009, he said the Justice Department would only defend government agencies in FOIA lawsuits if it concluded their FOIA denials were truly (not technically) prohibited by law. It will be interesting to see how the Justice Department responds to this lawsuit. Whether or not a Justice Department attorney mounts a spirited defense defending the government's practices should prove an excellent indicator of how seriously the rank and file takes Holder's guidelines.

[Magda Hassan]

The government could save themselve a ton of administration if they just made all the documents available and accessible via the internet to any one. Yeah, yeah, I know :bolt:Government transaparency only goes so far.