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.
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.
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.
Yesterday, the Web Integrity Project at the Sunlight Foundation released its third report about Web censorship at the Office on Women’s Health (OWH): Removal of Breast Cancer Website and Related Webpages from within HHS’s Office on Women’s Health Website. The report documents how the OWH Breast Cancer website and corresponding factsheets, which contained information about the disease, including symptoms, treatment, risk factors, and public no- or low-cost cancer screening programs, have been entirely removed from within the Department of Health and Human Services’ (HHS) Office on Women’s Health (OWH) website and are no longer found elsewhere on the OWH site.
The office did not proactively announce or explain the removals. The Paperwork Reduction Act1 requires that any agency must “provide adequate notice when initiating, substantially modifying, or terminating significant information dissemination products.” The National Archives and Records Administration (NARA) also reminded agencies in December 20162 that when significant changes are made to agency websites, federal web records, including data sets, must be scheduled and transferred to NARA for preservation. A question has been sent to NARA as to whether the agency has complied.
1 Paperwork Reduction Act, 44 U.S.C. § 3506(d)(3)
2 NARA, “Agency Responsibilities for Managing Web Records”, December 22, 2016.
In addition to the article detailing the rescue of 19 agencies Trump intended to eliminate, Government Executive writes today on the much broader issue of government reorganization—which it apparently wished to do under the congressional and public radars. In Omnibus Puts Kibosh on White House Efforts to Unilaterally Reorganize Agencies, Shed Workers, Eric Katz notes that in the omnibus spending bill approved this week Congress codified its role in overseeing the process of agency reorganization (and often related diminution of staffing levels). Some of the provisions would prohibit specific proposals or workforce cuts from taking place, while others simply demand congressional review and input.
At the Environmental Protection Agency, for example, lawmakers said in an explanatory statement they were rejecting Trump’s proposed cuts and not providing any funding for “workforce reshaping.” The measure would allow for just $1 million for reprogramming, which would include “proposed reorganizations, workforce restructure, reshaping, transfer of functions, or downsizing, especially those of significant national or regional importance, and include closures, consolidations, and relocations of offices, facilities, and laboratories.” Congress said it does not expect EPA to “consolidate or close any regional offices in fiscal year 2018.”
At the State Department, the bill would require the department’s inspector general to review the “redesign” at State and the Agency for International Development to ensure proper processes were used and the input of employees was included. State would also be required to report to Congress on any actions taken last year in response to Trump’s call for reorganization and subsequent guidance from the Office of Management and Budget. Congress said it expected State to maintain the foreign service and civil service staff levels on board as of Dec. 31, 2017.
The Education Department is directly blocked from decentralizing its budget office, which reportedly sparked dissension both within the agency and at the White House.“There remains concern that adequate information about and justification for its reorganization have not been transparently shared with Congress and stakeholders to be able to evaluate the changes being proposed, including the potential benefits or existing challenges they are meant to address,” lawmakers said.
The Food and Drug Administration, Commodity Futures Trading Commission and the rest of the Agriculture Department were warned to “be mindful” of the legislative branch’s role in setting funding levels for fiscal 2019. Even though the Trump administration has instructed agencies to assume the drastic cuts proposed in the president’s budget would be implemented, Congress told agencies to hit the brakes.
“Therefore, the agencies should not presuppose program funding outcomes and prematurely initiate action to redirect staffing prior to knowing final outcomes on fiscal year 2019 program funding.”
A provision funding the departments of Commerce and Justice would specifically prohibit any preprogramming of funds to “reassign an employee or reorganize offices.” If those agencies were to issue a reduction in force, they must first provide 30-days notice to Congress.
The Homeland Security Department would need to provide lawmakers with 60-days notice if they follow through on reorganizing its headquarters.
OMB originally said agencies would make their reorganization and workforce reduction plans public in Trump’s fiscal 2019 budget. That document provided some details on agency plans when it was released in February, but promised more details in the president’s management agenda. The management agenda, released this week, also promised more details on the overhauls in the coming months. See Government Reorganization in the Dark for a discussion of how OMB has been hiding that information and has been sued for it.
As noted in that post, Rep. Elijah Cummings, D-Md., the top Democrat on the House Oversight and Government Reform Committee, has said the Trump administration’s proposals would amount to a “degradation of the federal workforce” that was occurring “in darkness.” He has called for hearings on the plans and attempted, unsuccessfully, to solicit them from OMB.
Government Information Watch today joined 29 other civil society organizations in a letter to Senators expressing grave concerns regarding the nomination of Gina Haspel for Director of the Central Intelligence Agency (CIA), and asking that her nomination not be advanced until all of the records on her past involvement in the CIA torture program are declassified and released to the public.
The letter notes that
“[t]he Senate’s constitutional obligation to “advise and consent” on any nomination requires that it have full access to relevant information on the nominees before it. In Ms. Haspel’s case, the precise details of her role in the torture program remain classified. All senators should demand that those records be declassified and made public—before her nomination moves any further—so that they can actually discuss Ms. Haspel’s deeply disturbing background in open session, and so that the public can glean a more detailed picture of her role in one of the darkest chapters in U.S. history.
Ms. Haspel was a central figure in the torture program and the destruction of evidence of torture. Based on already available records and public reporting, it is clear by her wrongdoing that she demonstrated disregard for the rule of law and fundamental human rights.”
The letter is here : https://govinfowatch.net/wp-content/uploads/2018/03/Haspel-coalition-letter-3-16.pdf
According to several stories in Defense One, communications with the public and the press are being actively discouraged. A March 13 story notes:
The U.S. Air Force is slashing access to media embeds, base visits and interviews as it seeks to put the entire public affairs apparatus through retraining — a move it says is necessary for operational security, but one which could lead to a broader freeze in how the service interacts with the public.
According to March 1 guidance obtained by Defense News, public affairs officials and commanders down to the wing level must go through new training on how to avoid divulging sensitive information before being allowed to interact with the press.
Before settling on retraining its public affairs corps and commanders, the service considered an even more drastic step: shutting down all engagement with the press for a 120-day period, a source with knowledge of the discussions said.
The guidance, which was marked as “for official use only,” was distributed to public affairs officials following a February 2018 memo on operational security signed by Air Force Secretary Heather Wilson and Chief of Staff Gen. Dave Goldfein. The story indicates that the guidance reflects a renewed focus on operational security that stems from the Trump administration’s recently released National Defense Strategy.
The seven-page guidance states:
In line with the new National Defense Strategy, the Air Force must hone its culture of engagement to include a heightened focus on practicing sound operational security. As we engage the public, we must avoid giving insights to our adversaries which could erode our military advantage. We must now adapt to the reemergence of great power competition and the reality that our adversaries are learning from what we say in public.
As Steve Aftergood notes, the new Air Force guidance does not distinguish between classified and unclassified information. Nor does it define the scope of “sensitive operational information” which must be protected.
Secrecy News also notes, moreover, that “As it happens, a counter-argument in favor of enhanced Air Force release of information was made just last week by Air Force Secretary Heather Wilson.” The Public Affairs Management, Air Force Policy Directive 35-1, March 8, 2018, which notes in bold “COMPLIANCE WITH THIS PUBLICATION IS MANDATORY, states:
1. Overview. The Air Force has an obligation to communicate with the American public, including Airmen and families, and it is in the national interest to communicate with the international public. Through the responsive release of accurate information and imagery to domestic and international audiences, public affairs puts operational actions in context, informs perceptions about Air Force operations, helps undermine adversarial propaganda efforts and contributes to the achievement of national, strategic and operational objectives. This directive establishes the framework for Air Force public affairs operations.
2. Policy. The Air Force shall conduct comprehensive, active communication programs at all levels of command—in garrison and while deployed—to provide Airmen and their families, Congress and the American public timely, factual and accurate Department of Defense and Air Force information that contributes to awareness and understanding of the Air Force mission.
2.1. The Air Force shall respond to requests for releasable information and material. To maintain the service’s credibility, commanders shall ensure a timely and responsive flow of such information.
2.1.1. The Secretary of the Air Force authorizes delegating the review of information proposed for public release to the lowest level competent to evaluate the content. Generally, reviewers shall assess the potential implications of releasing the information, ensuring it is not classified, does not disclose operationally sensitive elements, and does not conflict with established government policies or programs.
2.1.2. Public affairs programs shall not practice propaganda, disinformation or activities intended to bias, mislead, misinform or deny otherwise releasable information.
2.2. The Air Force shall develop and maintain cooperative and responsive relations with the public and media. Public affairs activities will support leaders at all levels in fostering public trust and support through active community outreach.
2.3. The Air Force shall collect, preserve and accession visual information products to meet operational, informational, training, research, legal, historical and administrative needs.
2.4. The Air Force shall organize, train and equip its bands to conduct appropriate engagements to foster sustained public trust and support, sustain warfighter morale, build partnerships, foster national pride, patriotism and service and recruit talented Airmen.