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Steven Aftergood over at Federation of American Scientists’ Secrecy News project writes today that President Trump recently commented off-handedly that reports from the Department of Defense’ Inspector General should be private and not publicly accessible. It’s unclear if this off-the-cuff comment will lead to less public access to these important reports, but Aftergood notes that “secrecy in the Department of Defense has increased noticeably in the Trump Administration” but that the Pentagon still publishes a massive amount of information. What is clear is that this one small comment could have huge implications going forward from “For Official Use Only” markings to restrict access to information to perhaps an erosion of the FOIA process. This is certainly something to keep an eye on.
The recurring dispute over the appropriate degree of secrecy in the Department of Defense arose in a new form last week when President Trump said that certain audits and investigations that are performed by the DoD Inspector General should no longer be made public.
“We’re fighting wars, and they’re doing reports and releasing it to the public? Now, the public means the enemy,” the President said at a January 2 cabinet meeting. “The enemy reads those reports; they study every line of it. Those reports should be private reports. Let him do a report, but they should be private reports and be locked up.”
It is not clear what the President had in mind. Did he have reason to think that US military operations had been damaged by publication of Inspector General reports? Was he now directing the Secretary of Defense to classify such reports, regardless of their specific contents? Was he suggesting the need for a new exemption from the Freedom of Information Act to prevent their disclosure?
Or was this simply an expression of presidential pique with no practical consequence? Thus far, there has been no sign of any change to DoD publication policy in response to the President’s remarks.
UPDATE: Senate torture report to be kept from public for 12 years after Obama decision by Spencer Ackerman, The Guardian (12 December 2016). President Obama has agreed to preserve the report, but his decision ensures that the document remains out of public view for at least 12 years and probably longer. Obama’s decision prevents Republican Senator Richard Burr from destroying existing classified copies of the December 2014 report. Daniel Jones, a former committee staffer criticized the preservation as inadequate. “Preserving the full 6,700-page report under the Presidential Records Act only ensures the report will not be destroyed,” Jones said. “It does little else.”
Declaring that the written history of the U.S. torture program is in jeopardy, two former United States Senators have called upon President Obama to take steps now to make it difficult for a future administration to erase the historical record.
- The Torture Report Must Be Saved By CARL LEVIN and JAY ROCKEFELLER. New York Times (DEC. 9, 2016)
They suggest that President Obama can do this by declaring that the Senate Intelligence Committee’s full, classified 6,700-page report on torture is a "federal record." This will allow government departments and agencies that already possess the full report to retain it and it will make it more difficult for a future administration to destroy existing copies of the document.
Traditionally we think of "government documents" as those publications that government agencies produce for public consumption and "government records" as information that provide evidence of the operations of the agency. Government "records" are defined in 44 U.S. Code § 3301:
…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…
The National Archives and Record Administration uses this definition to guide agencies in their records retention and disposition policies.
As Levin and Rockefeller point out, "the roughly 500-page summary of the Senate report [available as a free PDF and as a $29 print copy] that was declassified and made public at the end of 2014 is only a small part of the story. The full report remains classified." They say that the full report contains:
"information that leads to a more complete understanding of how this program happened, and how it became so misaligned with our values as a nation. Most important, the full report contains information that is critical to ensuring that these mistakes are never made again.
In 2014, the report was sent by the Committee to the Obama administration. Senator Richard Burr of North Carolina, has tried to recall the full report to prevent it from ever being widely read or declassified and specifically asked that it "should not be entered into any executive branch system of records." So far, the Obama administration has not returned the report to Senator Burr. Levin and Rockefeller say that "Given the rhetoric of President-elect Trump, there is a grave risk that the new administration will return the Senate report to Senator Burr, after which it could be hidden indefinitely, or destroyed."
Steven Aftergood says that “The Government Accountability Office this week quietly published a list of titles of its restricted reports that have not been publicly released because they contain classified information or controlled unclassified information.”
- GAO Posts Titles of Restricted Reports by Steven Aftergood, Federation of American Scientists, Secrecy News (Oct.16, 2015).
There are several limitations to the new disclosure policy. It does not reflect restricted GAO reports that were generated prior to 2014. It will not cite titles that are themselves classified. And it will not include reports that focus on an individual intelligence agency.
- Restricted Products Government Accountability Office.
- A listing of GAO restricted report titles from 1971-2011 [pdf] copies of the first page of each GAO report issued prior to 1972 that remains classified, [pdf] GovernmentAttic.org.
- CRS: Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis
- CRS: The Freedom of Information Act (FOIA): Background, Legislation, and Policy Issues
CBO Gov Doc: H.R. 653, FOIA Act
- “H.R. 653 would amend the Freedom of Information Act (FOIA). FOIA generally allows any person to obtain records from federal agencies. Specifically, the legislation would: establish a single website for making FOIA requests; direct agencies to make records available in an electronic format; require courts to pay some attorney fees and other litigation costs related to FOIA disputes; reduce the number of exemptions agencies can use to withhold information from the public; clarify procedures for handling frequently requested documents and charging fees; establish the Chief FOIA Officers Council; and require agencies to prepare additional reports for the Congress…. CBO estimates that implementing H.R. 653 would cost $22 million over the 2016-2020 period, assuming appropriation of the necessary amounts…”
Agency Reg Updates: CIA & DOJ
- CIA Reviews “Operational Files” Exemptions from FOIA [fas.org overview*]
- Justice Dept. Updates its FOIA Regulations [fas.org overview]
- Updates regulations to lower copying fees, recognize Internet news organizations as representatives of the news media making them exempt from search fees, and increase responsiveness to requests for classified information by determining whether continuing classification is proper**
- NARA Special Access and FOIA unit: Second Assessment of the National Archives and Records Administration’s FOIA Program
- Blog: Let’s Make It Easier for Requesters to Use the FOIA Process
House of Representatives [fas.org overview]
- House Defense Bill Seeks Expedited Declassification of POW Records
- House Armed Services Committee instructed the National Nuclear Security Administration to report on “the measures taken to improve the effectiveness of the classification process and related oversight.”
Department of Homeland Security
In case you missed it, PBS now has both parts of the Frontline Documentary “United States of Secrets” online.
- United States of Secrets. PBS. 2014. Part One – “The Program: How did the government come to spy on millions of Americans?” Part Two – “Privacy Lost: How Silicon Valley feeds the NSA’s global dragnet.”