Request for Extension Interior FOIA Rulemaking 14 Jan 2019
Today, 26 November 2018, organizations and individuals committed to federal government openness and accountability, submitted comments urging the National Archives and Records Administration (NARA) to reconsider the proposed Department of Interior records retention schedule (DAA-0048-2015-0003) and NARA’s Appraisal thereof.
Points made in the letter include:
• DAA-0048-2015-0003 consolidates a large number of existing record schedules into a single document. We understand that this change is part of larger effort, initiated and led by NARA, to move agencies to scheduling their records in “big buckets,” or large aggregation, schedules. The implementation of the ‘big bucket’ process in this instance is spelled out by the Department of Interior in its Request (DAA-0048-2015-0003): “Methodology: … This change to a departmental schedule, from individual bureau schedules, moves disposition authority for Record Groups 022 (FWS), 049 (BLM), 057 (USGS), 075 (BIA), 079 (NPS), 115 (BOR), 471 (OSMRE), 473 (BSEE), and 589 (BOEMRE) to 048.” (Emphasis added)This change takes authority to make records destruction requests out of the hands of these bureaus/offices — the Bureau of Land Management, National Park Service, US Fish & Wildlife Service, US Geological Survey, Bureau of Safety and Environmental Enforcement, and Bureau of Indian Affairs — and puts that authority solely in the office of the Secretary of Interior (record group 048). It is of great concern that this authority would be removed from the bureaus where the subject area specialists (including records specialists) reside and placed in the Office of a political appointee.
• We are deeply concerned by the frequent statement in NARA’s Appraisal Memo that the records under review “do not document significant actions of federal officials.” As NARA is aware, the legal definition of Records (44 U.S.C. Chapter 33 § 3301) is
RECORDS DEFINED. —(1) IN GENERAL.—As used in this chapter, the term “records”— (A) includes all recorded information, regardless of form or characteristics, made or received by a Federal agency under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them.
While the “actions of federal officials” are part of the “transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government,” they certainly do not constitute the entirety of activities of the United States Government.
• We are especially troubled by the appraisers’ use of the phrases “of interest” and “of value” to “NARA researchers.” Indeed, in relation to Indian Trust fiduciary accounting (IFTA) records that had been previously authorized for permanent retention during the Cobell, et al. v. Salazar, et al., litigation (1996-2009), NARA states that “Now that this litigation has been settled, DOI and NARA are in agreement that, while IFTA records possess long-term legal value, they are not of interest to NARA researchers.”(Emphasis added) It certainly seems that large numbers of researchers, including—but not limited to–legal, scientific, financial, environmental, are excluded from NARA’s sense of its responsibility. This limitation is nowhere in the basic laws and authorities of NARA.
• In the same discussion of the IFTA records, NARA made an additional statement that causes us concern: In creating the DRS, the Department and bureau representatives have made a good faith effort to reschedule series (or portions of series) as temporary, where the records were found to lack continuing value as archival records. …During the appraisal, bureaus also notified NARA of series discovered to be obsolete and these have been removed from the crosswalk. (Emphasis added)
• In light of all the serious concerns noted above – and the assessments made in the referenced document by outside experts on the bureaus and the activities conducted by them– we request that the Department of Interior be directed to submit a new Request with “obsolete” series restored and that a new appraisal be undertaken by NARA.
• Finally, and somewhat separately, we strongly urge NARA to undertake a vigorous and public outreach to the wide variety of stakeholders in the preservation of the records of “the organization, functions, policies, decisions, procedures, operations, or other activities of the United States Government or because of the informational value of data in them.” This will entail and necessitate going well beyond the agencies and “NARA researchers.” The process of identifying what records will be preserved and for what lengths of time (and in what formats) is excessively opaque and must be made apparent, all related documents must be made publicly available without a FOIA request, and the public must be given adequate time to process the information and to comment.
A new category has been added to this site—Publications.
The first entry there is “Secrets and Lies — Exposed and Combatted: Warrantless Surveillance Under and Around the Law 2001-2017.” Secrecy and Society 2(1). https://scholarworks.sjsu.edu/secrecyandsociety/vol2/iss1/
This article was written over the period of June 2017 to March 2018. Before June 2013, civil society and much of Congress were largely in the dark about the extent of the surveillance activities of the National Security Agency and the circumlocutions of statute undertaken by the White House and the Department of Justice. After the releases by Edward Snowden to specific journalists, the mendacity of Intelligence Community lawyers and leaders, the evasions of the law and manipulation of the FISA Court by the White House working with the Justice Department, and the scope of the violations of the Fourth Amendment protections of U.S. Persons (USPs) became increasingly apparent.
In order to understand the context for the “Snowden disclosures” and what they have meant for Executive Branch accountability, it is necessary to understand the course of efforts to rein in – or at least secure some (often minimal) oversight of – the U.S. Intelligence Community. These initiatives include the Foreign Intelligence Surveillance Act (FISA) and the amendments thereto, including, for the purposes of this article, the USA PATRIOT Act, the USA Freedom Act, and the FISA Amendments Act (FAA) and its reauthorizations. The article reviews the changes that were initiated in the Executive Branch (and to a lesser extent in the Legislative Branch), the role civil society played in pushing and utilizing greater transparency, and what the changes mean for government accountability to the public.
As news articles appear about the ongoing activities of the Intelligence Community in the areas covered in this article, they will be noted here. It is strongly advised that one read “Secret and Lies” before taking any government statements at face value–or thinking the words necessarily mean what they appear to mean.
UPDATE — We have heard about conversations with folks who use Google at their agencies. The general consensus seems to be that the new features are in conflict with records management laws and those need to be resolved before any potential implementation of these features, and it’s highly unlikely that they can be incorporated due to that. It also sounds like there’s not a large user demand for these features (probably due to complacency and comfort with the existing set up).
On April 25, Google announced the introduction of a new approach to information protection: Gmail confidential mode.
“With confidential mode, it’s possible to protect sensitive content in your emails by
- creating expiration dates or
- revoking previously sent messages
- requiring additional authentication via text message to view an email.”
But, wait, there’s more…
“Built-in Information Rights Management (IRM) controls also allow you to remove the option to
- download or
- print messages.
This helps reduce the risk of confidential information being accidentally shared with the wrong people.”
What could possibly go wrong when government employees, lobbyists, and even nefarious folks are allowed to use these options (which may be all on or all off)?
American Oversight has already sent a letter to the National Archives and Records Administration (NARA) calling for government-wide guidance to prevent officials and employees from using Gmail’s new “self-destructing” and “revoking” email feature. As they note, the feature could allow government employees to delete agency records subject to the Freedom of Information Act (FOIA). That feature would also be a violation of the Federal Records Act.
Of equal, if not greater, concern are the other features. Government Information Watch is working with current and former government employees to identify the bars to the use of these “information rights” features (including requiring authentication to view messages) by officials and employees.
Their implementation could have deleterious effects on whistleblowers, journalists, and the ability to use information received through FOIA releases.
Stay tuned. We will be updating you as we go forward.
I am more and more reminded of the Bush-Cheney Administration. Not only are the (literal) war-horses being recycled, but the enormous disdain of Congress and the refusal of any accountability to the public are painfully familiar to any of us who endured that period.
To wit, the White House is stonewalling the Government Accountability Office, according to a May 30 report in Government Executive. Not to give the current White House any ideas, but this is a mere sfumatura (as Italians would say) of the confrontation that Cheney created. The following is excerpted from my 2007 book, Who Needs to Know?
On April 19, 2001, Representatives Dingell and Waxman launched joint requests to both the Vice President and the General Accounting Office concerning the Vice President’s Energy Task Force, its members, and its proceedings.
In response to the request by Representatives Dingell and Waxman, the General Accounting Office (GAO) issued the first demand letter ever to a sitting Vice President. GAO considered its statutory authority to be clear.
Counsel to the Vice President David Addington responded to the Congressional request, explaining that the Energy Group was not subject to the Federal Advisory Committee Act. As a matter of comity, though, he would provide some answers about the Energy Group’s members, staff and activities. Addington declared that GAO was seeking “to intrude into the heart of Executive deliberations, including deliberations among the President, the Vice President, members of the President’s Cabinet, and the President’s immediate assistants, which the law protects to ensure the candor in Executive deliberation necessary to effective government.” GAO argued that even assuming this claim was accurate, it still had the authority to make the requests it had made.
On Sept. 27, for the first time in the 81‑year history of the agency, the comptroller general of the United States went to Federal court today to ask a judge to order a member of the executive branch to turn over records to Congress.
It was clear, even this early in this administration, that executive privilege was an issue of central importance to the Administration. As John Dean—who, as counsel to former President Nixon might be considered to know something about the abuse of power—writes, “not since Richard Nixon stiffed the Congress during Watergate has a White House so openly, and arrogantly, defied Congress’s investigative authority. … Cheney has not claimed “Executive Privilege,” for the Vice President has no such power. Rather, Cheney has claimed ‑ and Bush has backed up his claim ‑ that GAO (and therefore the Congress, too) has no authority to seek the information they have requested.”
Dean also noted “the special attention” given this case:
In fact, it is unique in the history of the Department of Justice. Normally, this case would have been handled by the Civil Division of the Justice Department. But this case is one of a select few being handled by a newly created special unit under the direction of Deputy Solicitor General Paul Clement. …Not only is this nameless ad hoc group representing Vice President Cheney, but no less than the Solicitor General himself, Theodore Olson, was seated at the trial table in the Judge Bates’s courtroom during the recent augment. Typically, the Solicitor General only appears before the U.S. Supreme Court. For the SG to appear in the U.S. District Court was clearly designed to send a message to the Judge of the unusual importance the Bush‑Cheney Administration has given this case ‑‑ not to mention to prepare the SG for later arguing the case before higher courts.”
On December 9, 2002, U.S District Judge John Bates, a Bush appointee and former Kenneth Starr deputy, ruled against GAO (Walker v. Cheney). The opinion reads:
“The parties agree that no court has ever before granted what the Comptroller General seeks – an order that the President (or Vice-President) must produce information to Congress (or the Comptroller General). Because the Comptroller General does not have the personal, concrete, and particularized injury required under Article III standing doctrine, either himself or as the agent of Congress, his complaint must be dismissed. Historically, the Article III courts have not stepped in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action.
This decision, in essence, secures the Bush Administration’s position that it has the right to withhold from the public–and Congress–any and all details of its policy-development meetings with non-governmental people. It also chills any attempt by Congress to use the GAO to monitor the executive branch.
We are not yet there, but not for the lack of trying by the Trump administration.
 John W. Dean. “GAO v. Cheney Is Big‑time Stalling: The Vice President Can Win Only If We Have Another Bush v. Gore ‑like Ruling .” FindLaw, Friday, Feb. 01, 2002. http://writ.news.findlaw.com/dean/20020201.html
 John W. Dean. “The Ongoing Fight Between the Supreme Court And Congress, as Illustrated by the GAO/Cheney Suit: Part Two Of A Series On Shrinking Congressional Powers.” FindLaw, Friday, October 25, 2002. http://writ.news.findlaw.com/dean/20021025.html
 Memorandum Opinion and Order. Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002)
UPDATE–The Southern Environmental Law Center is suing the Office of Management and Budget for failing to release information about efforts to fundamentally reorganize federal agencies responsible for managing federal public lands, including the United States Forest Service, the National Park Service, the Bureau of Land Management and the United States Fish and Wildlife Service. SELC filed a request for information related to these reports in November 2017. After initially acknowledging SELC’s request, OMB has failed to provide the requested information or respond to inquiries pertaining to the request. Today’s suit challenging OMB was filed in U.S. District Court for the Western District of Virginia.
In January, I wrote about Government Reorganization in the dark and recounted the efforts of PEER and Government Executive to find the website that OMB purports to have set up to receive public comments, the 100,000 it alleges it received, and any information about the OMB’s plans for the agencies. The purported website previously at least took one to the bare bones OMB site; now it takes you on a wild goose chase.
That page cannot be found, or is located on an archived web page.
On 2 May, Government Executive reported on the continuing saga.
…Agencies turned over initial versions of their plans to OMB in June of last year and final drafts in September. Lawmakers have not yet viewed the proposals and said they do not know if agencies met their deadlines.
The administration initially said the plans would be made fully available in Trump’s fiscal 2019 budget, though only a handful of agencies offered details in that document. Mulvaney recently told a congressional committee the White House would unveil the complete agency reform plans later this month.
As Gov Exec notes, however, Congress felt the need to mandate consultation on any consolidation or cutting of workforces:
Congress included several provisions in a recently passed governmentwide spending bill to ensure the Trump administration consults with lawmakers before consolidating offices or shedding workers. Several agencies have already risked running afoul of those provisions.
“The fact that the Republican-controlled Congress had to pass legislation to require the Trump administration to show us their secret reorganization plans is indicative of just how extensive the administration’s obstruction of congressional oversight has become,” Cummings said after the omnibus was enacted.
In a disturbing story today on The Marshall Project, Christie Thompson writes about Manuel Herrera, who has been in immigration detention in Hudson County, New Jersey, for almost a year. In that time, his lawyer has been fighting to prove he is a U.S. citizen.
Herrera’s parents brought him to the U.S. from Honduras in 1976, when he was 3 months old. His family had green cards that allowed them to enter legally and stay indefinitely…
He is now facing deportation based on three drug convictions and a “possession of stolen property” charge, the most recent of which was in 2002. Thanks to his immigration attorney at The Legal Aid Society in New York, though, Herrera has since discovered he may have been a citizen all along.
There are two ways Herrera might have U.S. citizenship: first, through an application to naturalize that, 22 years later, is “still pending” with U.S. Citizenship and Immigration Services. …
From the perspective of Government Information Watch, there is another aspect of his story that is especially troubling:
Citizenship is often discussed as a black-and-white issue. You were either born here or you weren’t; you either have a U.S. passport or you don’t. The Trump administration plans on asking people if they’re a citizen on the upcoming census. But there are countless cases like Herrera’s of people swept into removal proceedings who don’t know their own status.
U.S. law says Americans should never be held in immigration detention, but research shows it has happened thousands of times. A recent investigation by the Los Angeles Times found ICE released 1,480 people since 2012 because of citizenship claims. Many of these are clear-cut cases of wrongful arrest, a mistaken identity, or officials refusing to accept passports as proof. But more common are cases like Herrera’s, where an immigration attorney’s dive into someone’s history reveals they may have a legal right to be here.
…compiling the records to prove it can be a long and arduous process — especially for those without an attorney.
Herrera only uncovered his possible citizenship claim because he lives in New York, one of the few cities in the country that provides free immigration attorneys to anyone who needs one.
However, unlike criminal defendants, immigrants facing deportation have no right to legal discovery–what they have is the Freedom of Information Act. One can guess how well that has worked…
Herrera first submitted a FOIA request in August 2017. It took the government over seven months to respond. In an April immigration court hearing, an attorney for the Department of Homeland Security said the documents would have come slightly sooner but got “lost along the way.”
When his attorney [Gregory Copeland] finally received the records, he found they contained scant information on his client’s application to naturalize and no information about his father or grandfather.1 The records show ICE had not sufficiently looked into Herrera’s claim of citizenship, Copeland said. He has filed another FOIA, a subpoena, and a habeas petition in Herrera’s case, all trying to get to the bottom of whether Herrera has a right to stay in this country.
In the April hearing, the DHS attorney said releasing documents about Herrera’s father would violate his privacy rights.
1 Under U.S. immigration law, if someone becomes a citizen and has a child under 18, that child may also be a citizen. So if they can prove his grandparents naturalized before his father was an adult, and that his father lived in the U.S. for long enough, that would make his father a citizen and in turn, Herrera.
The Mapping Police Militarization (MPM) project, which went live last July, is a great resource for those trying to track equipment transfers to law enforcement agencies under the 1033 program from 2006 through 2013. The 1033 program, the federal government’s Law Enforcement Support Program, allows police to acquire surplus military equipment at no direct cost to use in counter-drug and counter-terrorism activities. Since the early 1990s, the Defense Logistics Agency’s 1033 program has transferred a wide range of excess military equipment; available equipment includes general law enforcement supplies (e.g., handcuffs, riot shields, holsters, binoculars, and digital cameras), and general office materials (e.g., office furniture, kitchen appliances, exercise equipment) as well as specialized military equipment including armored vehicles, aircraft, and weapons. [Emphasis added]
The MPM data are geocoded to U.S. counties or county equivalents in an interactive map. Each equipment transfer records the equipment details (type, amount), the date the equipment was provided, and the government’s estimated value of the equipment. To streamline analysis, the data are also coded into one of six broad equipment types (Weapons, Protective Equipment, Communications/Surveillance, Non-armored Vehicles, Armored Vehicles, and Miscellaneous).
The site maps the data by county. Selecting individual counties produces: a summary window that contains the 1033 program usage along with that county’s population and a link to download a detailed account of program usage across all years for the selected county. 1033 program usage for individual years can be found by selecting the year of interest from the list.
As MuckRock has noted, the Defense Department was previously loath to release detailed data for the 1033 program, particularly regarding which individual departments have received weapons, aircraft and other tactical equipment. In December 2013, the Defense Logistics Agency released two years of state-by-state transfer data to MuckRock, while the New York Times obtained data down to the county level in May 2014.
The DLA continues to make the information publicly (f you can find it…) available, updated quarterly, in a spreadsheet.
In a Just Security post today, Patrick Eddington provides a detailed history of John Bolton’s various stints in the Executive Branch—and his attitudes about the use of information to advance his agenda. As Eddington notes
Bolton rose to prominence in the Bush (43) administration’s first term as the Undersecretary of State for Arms Control and International Security Affairs, where he frequently clashed not only with his Bush administration colleagues but with career government servants at the State Department and the U.S. Intelligence Community. And it was those confrontations, along with credible allegations of abuse of surveillance powers [apparent attempts to obtain information on the identities of other American officials picked up in conversations by NSA] and [of] Intelligence Community analysts, that ultimately led to Bolton’s exit from the administration. [Emphasis added]
Now, Trump is putting Bolton in as the National Security Advisor, where he will not only see but be able to rouse the President to attack enemies “at home and abroad,” with
..unprecedented access to intelligence collection and surveillance authorities that routinely gobble up trillions of digital communications, including a vast (but currently undisclosed) number of text messages, emails, etc., belonging to Americans.
Bolton will also have access to FBI investigative information and capabilities, and be in a position to pressure the bureau or other federal agencies to investigate Americans in contact with foreign governments, nongovernmental organizations, foreign journalists, and more.
The problem for accountability is that
Because Bolton will be an appointee on President Trump’s staff, direct Congressional access to his communications with federal departments and agencies will likely be nonexistent, absent leaks to the media. Accordingly, the only chance of surfacing politically or legally dubious actions by Bolton or those working on his behalf will come from aggressive Congressional oversight of those same executive branch entities for any directives, taskings, or other orders that he hands down. [Emphasis added]
Eddington, a former Senior Policy Advisor to Rep. Rush Holt, identifies the tools available to the House and Senate to get information on Bolton’s activities from executive branch agencies—including Resolutions of Inquiry, appropriations riders, subpoenas, or holds on other executive branch nominations.
To be effective, such oversight must have “at least a modicum of bipartisan cooperation.” And, in the current Congress, there’s the rub.
And, failing meaningful congressional oversight—and/or consequential internal executive branch disclosures and whistleblowing—the public will be completely in the dark.
In a post today on Lawfare, A Hard Transparency Choice: What is WikiLeaks?, Carrie Cordero raises important questions about the approach of the US government to Wikileaks. Cordero points to the specific links that the Intelligence Community has drawn between the Russian government and Wikileaks, which are telling in themselves. However, she notes that IC officials have openly and publicly “called out” Wikileaks as “a non state, hostile intelligence service often abetted by state actors, like Russia.”
As further revelations have been made about contacts between Julian Assange and individuals (such as Roger Stone) affiliated with the Trump campaign regarding the hacked Clinton campaign-related emails, the basis for the IC assessment of Wikileaks role remains largely hidden. As Cordero notes, the U.S. government has not ever confirmed publicly whether it has an open counterintelligence investigation of WikiLeaks, although the Washington Post reported last spring that “the FBI has spent years investigating WikiLeaks…” and continued to do so in the context of the exfiltration of sensitive CIA hacking tools. Cordero points out that
As a result, the U.S. intelligence community has made specific statements about WikiLeaks—without really saying what it is, who funds it, who controls it and how it obtains information it releases. This makes it difficult for the public to accurately understand how to interpret WikiLeaks’ activities and releases. The current approach also makes it difficult for consumers of information released by WikiLeaks, including but not limited to professional journalists, to understand whether they are reviewing information that has been released as a public service, or as an orchestrated effort intended to manipulate, which activities may be supported, conducted or encouraged by a foreign intelligence service.
If we assume that WikiLeaks is subject to a longstanding investigation, and that there is a possibility that it or its officials have exposure to criminal charges, it may be that the FBI, Justice Department, special counsel, or all three would strongly oppose any further public disclosure by the intelligence community regarding what WikiLeaks is or how it operates. Yet, if WikiLeaks is, as director Pompeo has said, a “nonstate, hostile intelligence service often abetted by state actors, like Russia,” then there is a competing interest favoring a release of meaningful information that supports the assessment, by the intelligence community through appropriate transparency processes that have been developed in recent years. If such a public disclosure can be made, consistent with the need to protect classified information and accommodating ongoing investigative prerogatives, this seems like the right time to make it.