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The National Security Archive

The National Security Archive. The Freedom of Information Act Audit Phase 1 - March 18, 2003 Phase 2 – November 17, 2003. March 17, 2000, won the George Polk Award

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The National Security Archive

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  1. The National Security Archive The Freedom of Information Act Audit Phase 1 - March 18, 2003 Phase 2 – November 17, 2003

  2. March 17, 2000, won the George Polk Award "for piercing the self-serving veil of government secrecy, guiding journalists in search for the truth, and informing us all.” • 28,000+ Freedom of Information Act Requests filed since 1985, liberating 6 million+ pages of former secrets. • Litigated 34 FOI cases as Plaintiff, Counsel, or Amicus Curiae (won White House e-mail, Oliver North notebooks, JFK-Khrushchev letters, Terry Anderson kidnapper files, etc.). About the Archive

  3. The Purpose of the FOIA Audit • Comparative Study of Agency FOIA Processing and Impact of Policy Changes • Identify Best Practices and Problems • Recommend Improvements • Identify Issues to Pursue • Describe Problems Encountered By FOIA Requester Community • Assemble Information To Aid Other FOIA Requesters

  4. THE FOIA AUDIT • The Phases of the FOIA Audit: • Phase One - The Ashcroft Memorandum - Phase Two –The Ten Oldest FOIA Requests • Phase Three – Website Audit • Phase Four - The Card Memorandum

  5. The FOIA Audit: The ASHCROFT MEMO In reality what was the impact of the October 12, 2001 Attorney General Ashcroft Memorandum? Was the San Francisco Chronicle right in asserting that the guidance effectively repealed the FOIA? Or was it as some senior career officials claimed, "more continuity than change”? "The Day Ashcroft Censored Freedom of Information," January 6, 2002

  6. PHASE ONE: Ashcroft Memo • Eliminates AG Reno’s “Presumption of Disclosure” for Discretionary Releases. • Ashcroft Memo: “Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.”

  7. PHASE ONE: Ashcroft Memo • Eliminates ‘Foreseeable Harm’ Standard – Replaces With ‘Sound Legal Basis.’ • Ashcroft: “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis…”

  8. Ashcroft Memo FOIA Request The National Security Archive sent Freedom of Information Act requests to 35 different federal agencies seeking the following: “All records, including but not limited to guidance or directives, memoranda, training materials, or legal analyses, concerned with the [Agency’s] implementation of U.S. Attorney General John Ashcroft’s October 12, 2001 memorandum on the U.S. Freedom of Information Act.”

  9. Ashcroft Memo: FOIA Requests Timeliness of Agency Response to the Request: Did anyone make the 20-day time limit? 20 Days or Under to Respond: DOD, FEMA, NSA, NSF,SBA, FBI, NAVY, OMB, ARMY, CIA, USDA, SEC. Over 90+ days to Respond: HHS, DOE, DOI, HUD, State, DOL, DOT, DOJ, VET, SSA. Lost the Request: GSA, VET, EDU

  10. Ashcroft Memo: Findings • 5 of 33 Federal departments or agencies surveyed (15 %) indicated significant changes in regulations, guidance, and training materials and that the Ashcroft Memorandum was widely disseminated. “These new changes represent a marked shift in FOIA policy and will fundamentally change the way the federal government responds to FOIA requests… A hailstorm of discussion has followed the Ashcroft memorandum among those who regularly work with FOIA policy. “ Taken from: Anderson and Anderson, “Fundamental Shift in Freedom of Information Act Or Freedom of Information Act– Not so Free Anymore” Dept. of the Air Force Agencies with Significant Change: Air Force, Army, Navy, Department of the Interior, and the Nuclear Regulatory Commission

  11. Ashcroft Memo: Findings 8 of 33 Federal Departments or Agencies Surveyed (24 %) Indicated Implementation Activities Concerning the Ashcroft Memo, Including its Dissemination and Incorporation into FOIA Regulations and Procedures. Agencies in this category:Department of Commerce, Department of Defense, Department of Justice, Department of State, Environmental Protection Agency, National Aeronautics and Space Administration, Office of Management and Budget, Small Business Administration

  12. Ashcroft Memo: Findings Agencies in this Category: Agency for International Develop. Central Intelligence Agency Drug Enforcement Agency Defense Intelligence Agency Department of Agriculture Department of Education Department of Energy Dept. of Health & Human Services Dept. of Housing and Urban Develop. Department of Labor Department of Transportation Department of Treasury Federal Bureau of Investigation General Services Administration Nat. Archives and Records Admin. Office of Personnel Management Securities & Exchange Commission Department of Veterans Affairs 17 of 33 Federal departments or agencies surveyed (52 %) indicated awareness and dissemination of the Ashcroft Memo, but indicated little change in regulations, guidance or training materials reflecting the new policy.

  13. Ashcroft Memo: Findings 3 of 33 Federal Departments or Agencies Surveyed (9 %) Indicated No Changes in Regulations, Guidance or Training Materials, And Little if No Dissemination of The Ashcroft Memorandum. U.S. Central Command, Federal Emergency Management Agency, National Science Foundation “.. FEMA has not issued any guidance, directives, memoranda, training material or legal analyses regarding the implementation of United States Attorney General John Ashcroft’s October 12, 2001 memorandum on FOIA.” CENTCOM FOIA Officer deployed to Qatar: “What Ashcroft Memo?”

  14. Ashcroft Memo: Conclusion RESULT: More Secrecy In Government 39% of the Agencies Changed Policies As a Result of the Ashcroft Memorandum. Archive Study Suggests Impact Strongest in Military Agencies. Graphic taken from “Report to the President 2003, Information Security Oversight Office,” 31 March 2004

  15. More Secrecy in Government? Jan 1975 DIA Biographical Sketch on General Augusto Pinochet released in 1999 Jan 1975 DIA Biographical Sketch on General Augusto Pinochet released in 2003

  16. Phase Two: The 10 Oldest FOIA Requests • Do agency annual FOIA reports accurately portray agency backlog? • What are the oldest pending FOIA requests in the federal government? • How extensive is each agency’s backlog? • How long are FOIA requesters waiting?

  17. The 10 Oldest FOIA Requests • The National Security Archive sent Freedom of Information Act requests to 35 different federal agencies seeking the following: • “Copies of the [Agency’s] ten oldest open or pending Freedom of Information Act requests currently being processed or held pending coordination with other agencies.”

  18. 10 Oldest FOIA Requests: Findings Ten Oldest Requests in the federal government date from November 9, 1987 to December 5, 1989. ←A request to the CIA datedOctober 20, 1989 A request to the FBI dated→ November 9, 1987 The oldest requests came from the Federal Bureau of Investigation, the Department of Defense, the Central Intelligence Agency, and the National Archives.

  19. 10 Oldest FOIA Requests: Findings Almost all agencies had a substantial FOIA backlog. The CIA had the most consistent backlog, all 10 of its oldest requests pre-dated 1990. The FBI, which had the oldest single request, only had one request that pre-dated 1990.

  20. 10 Oldest FOIA Requests: Findings The Annual FOIA Reports Mask The Seriousness of the FOIA Backlogs • ARMY: Oldest FOIA pending - 3500 days 02’ annual report median - 25 days • CIA: Oldest FOIA pending - 4090 days 02’ annual report median – 601 days • FBI: Oldest FOIA pending - 3970 days 02’ annual report median – 90 days Ages of FOIA requests are frequently dramatically larger than the agencies' reported in their 2002 annual FOIA report statistic for "Median Days to Process”

  21. 10 Oldest FOIA Requests: Findings The Referral Of FOIA Requests To Another Agency for Processing or Consultation May Doom The Request to Obscurity. The above is a DIA response received in November 2003 to a request sent to the CIA in December 1987. Median times reported to Congress do not include the delays associated with referrals or wrangling over fees, which can add months or years to the process.

  22. 10 Oldest FOIA Requests: Findings In Larger, Extremely Decentralized Agencies, FOIA Requests Made to Central FOIA Offices May Suffer Extreme Delays. Several agencies so decentralized that they were unable to identify their oldest requests. There was no centralized tracking system. For example, the Occupational Safety and Health Administration (OSHA), a single component of the Department of Labor, stated it would have to contact 100+ separate FOIA officers in order to find its oldest requests

  23. 10 Oldest FOIA Requests: Findings The Quality of Tracking and Monitoring FOIA Requests Varies Immensely Agencies do not follow a uniform method of calculating the time spent processing requests. Some agencies may count and report business days while others count and report calendar days. Most don’t start counting days until a request has been ‘perfected’ and acknowledged. This can add weeks or months to the processing of a request.

  24. 10 Oldest FOIA Requests: Conclusion RESULT : Agency Backlogs are extensive and not accurately represented in the agency annual FOIA reports. FOIA Requesters can wait over 15 years for a response.

  25. FOIA Audit: Administrative Findings • Inaccurate or incomplete information about agency FOIA contacts. • Failure to acknowledge requests. • Lost requests. • Excessive Backlogs. • Complete Decentralization Leading to Delay and Lack of Oversight.

  26. FOIA Audit: Administrative Findings • Complete Decentralization Leading to Delay and Lack of Oversight. • Inconsistent Practices Regarding the Acceptance of Administrative Appeals. • Appealing for Lack of Response May Delay Processing, But Also May Get The Agency’s Attention. • Conflation of Fee Categorization and Fee Waiver Standards. “We do not process administrative appeals for failure to meet statutory time limits.”

  27. FOIA Audit in the News “[The Archive] found a 14- year-old request by then-graduate student William Aceves… “every few years I’ll get a call or a letter that my FOIA is still being worked on and asking whether I’m interested in it,” says Aceves, now a college professor in California. “I still want the records.” ” “Other causes of FOI delays… For one request, he has been negotiating with the department [of Defense] for more than two months ‘over the fact they think it is too time-consuming. In two months they could have just fulfilled the request.’ ” From: “Reporters run into FOIA roadblocks: Freedom’s just another word?” Editor & Publisher, Seth Porges, 1 December 2003.

  28. The FOIA Audit: Coming Soon Website Audit and The Card Memo Phase 4 – Card Memo Requests • March 19, 2002 issued by White House Chief of Staff Andrew Card • Advised government information, regardless of its age, when related to weapons of mass destruction should be more readily protected. Phase 3 – The Website Audit Examining Agency FOIA Websites

  29. CreditsPowerPoint Presentation Designed by Barbara EliasFOIA Audit Reports Written by Meredith Fuchs Additional Research by Barbara Elias, Will Ferroggiaro and Meredith Fuchs Edited by Thomas Blanton

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