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In a clear win for government transparency, National Security Archive et. al. v. Donald J. Trump et. al. lawsuit prevented the Trump administration from what was feared to be a wholesale destruction and loss of presidential records including the failure to preserve records — including President Trump’s reported ripping up of documents in the Oval Office — former aide Steve Bannon’s use of disappearing instant messages to communicate with campaign embeds at the agencies, private email use by Ivanka Trump and other top officials, and the routine use of encrypted WhatsApp messages by Jared Kushner and others.
Thank you co-plaintiffs National Security Archive, Society for Historians of American Foreign Relations (SHAFR), the American Historical Association (AHA), and Citizens for Responsibility and Ethics in Washington (CREW) for stepping up to save the official White House record for historians, students, and future litigators!
The National Security Archive et. al. v. Donald J. Trump et. al. lawsuit, filed December 1, 2020 to prevent a possible bonfire of records in the Rose Garden, achieved a formal litigation hold on White House records that lasted all the way through the transition and Inauguration Day, the preservation of controversial WhatsApp messages, and a formal change in White House records policy.
…The lawsuit argued that Trump White House policy that only saved via screen shots the instant messages of government business – such as Jared Kushner’s negotiations with Saudi prince bin Salman – failed to capture the complete record that the law required. Plaintiffs pointed to repeated media accounts of White House failures to preserve records, including President Trump’s reported ripping up of documents in the Oval Office, former aide Steve Bannon’s use of disappearing instant messages to communicate with campaign embeds at the agencies, private email use by Ivanka Trump and other top officials, and the routine use of encrypted WhatsApp messages by Kushner and others.
Justice Department lawyers defending against the lawsuit have informed plaintiffs that White House records managers have now successfully deployed an archival tool in the WhatsApp software to capture full copies including links and attachments of the WhatsApp threads in Kushner’s account and other WhatsApp users at the White House.
Happy Sunshine week (well, technically it’s next week, March 10-16, 2019)! The National Security Archive did a massive FOIA audit which showed that FOIA delays and backlogs continue across federal agencies. the most interesting/disturbing to me were the requests that fell into a FOIA “referral black hole” where agencies refer to or consult with other agencies on “any FOIA request in which it feels another agency or agencies may possibly claim ownership of, or “equity” in, the information within the records.” These referrals often result in massive delays.
One of the easiest ways to better deal with these referral delays is to allow FOIA.gov‘s request form to be submitted to multiple agencies (or multiple units within agencies) if the requester feels that the question overlaps agencies. but If anyone has other good ideas for how agencies can more quickly deal with the “referral black hole” please send me an email at freegovinfo AT gmail DOT com.
Washington, D.C. March 8, 2019 – Five federal agencies have FOIA requests more than a decade old and one, the National Archives and Records Administration, has a FOIA request more than 25 years old, this according to a National Security Archive Audit released today to mark the beginning of Sunshine Week. The survey also found there is a correlation between agencies with the oldest FOIA requests and those with the largest FOIA backlogs.
The Archive Audit team parsed through the annual FOIA reports federal agencies are required to submit to the Department of Justice’s Office of Information Policy and found that while many agencies appear to have used new reporting requirements as a tool to address the oldest agency FOIA requests, others have let decades-old requests linger. The Archive used the Fiscal Year 2017 reports because they were the most comprehensive collection available at the time of publication due to the delay caused by the government shutdown, and will update this posting once the complete set of FY 2018 reports are available.
The key driver for FOIA requests that could be renting cars by now and growing backlogs is the “referral black hole.” Agencies currently refer or consult on any FOIA request in which it feels another agency or agencies may possibly claim ownership of, or “equity” in, the information within the records. This daisy chain of referrals can often result in decades-long delay, and the re-review of the same document by multiple agencies is redundant, costly, and inefficient.