The FBI on Monday released more than 2,200 pages of documents on the late Sen. Edward Kennedy (D-Mass.) focusing on the FBI’s relationship with the senator from 1961 to 1985, USA Today reported. The documents are being released following a Freedom of Information Act request by media outlets.
“At no point do these files suggest the FBI investigated Senator Kennedy for a criminal violation or as a security threat,” the FBI said in an introductory statement on its website.
USA Today reported that the summary indicated that the documents include “limited public source information” on the 1969 Chappaquiddick Island car accident that resulted in the death of Mary Jo Kopechne. According to the summary, the bureau had no investigative role in the case.
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Although Attorney General Eric Holder is pushing government agencies to expedite Freedom of Information Act requests, the Department of Justice processed fewer requests in fiscal 2009 than it did in 2008.
The 2009 figures were disclosed in an annual report to Congress on Justice Department FOIA requests. Associate Attorney General Thomas Perrelli also sent two letters to House Speaker Nancy Pelosi and Vice President Joe Biden last week to accompany the report.
According to the report, the department processed about 60,200 requests in fiscal 2009, a slight decrease from the nearly 61,300 requests processed in fiscal 2008. More than 6,200 requests were pending at the beginning of fiscal 2009. By the end of the fiscal year, that number had jumped to more than 7,400 — an 18 percent jump.
While the number of requests processed in 2009 was slightly lower than in the previous year, it was still the second highest number processed since 2002, according to a report (PDF) issued by the DOJ’s Office of Information Policy chief Melanie Pustay last month.
Justice Department spokeswoman Tracy Schmaler said it takes longer to process requests since a new Obama administration policy on FOIA requests was implemented last year. Both President Barack Obama and Holder both issued memoranda in 2009 aimed at making the executive branch more transparent. The new policy instructs government lawyers to lean towards disclosure when reviewing requests.
The Holder memorandum rescinded then-Attorney General John Ashcroft’s Oct. 12, 2001 memo that told government lawyers the DOJ would defend any FOIA requests rejections so long as the decision had a sound legal basis.
Pustay said in testimony last month that federal agencies are continuing their efforts to reduce the FOIA request backlog. According to Pustay, the government’s overall backlog has been reduced by 50 percent since the new policy went into effect.
Speaking to government Freedom of Information Act officials last month, Holder said that “this past year has brought a shift in the way our entire federal government operates.”
While there is still a lot to be done, Holder said, the past year has “signaled the emergence of a government that’s striving to work more openly and more effectively for the people it serves.”
An independent audit by the National Security Archive at The George Washington University released last month named DOJ one of the few federal agencies to receive high marks for processing FOIA requests.
Andrew Ramonas contributed to this report.
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The Justice Department in a Monday court filing said it can’t find 10 documents that are supposed to be released as part of a Freedom of Information Act request filed by the American Civil Liberties Union, Al Kamen reported in The Washington Post.
The ACLU’s five-year FOIA battle seeks to illuminate the process that led to a policy of harsh interrogations of terrorism suspects during the Bush administration. One of the 10 missing documents is a 59-page exchange in 2002 between the Office of Legal Counsel and the Pentagon on the eve of a decision to increase the intensity of the interrogations, Kamen reported.
The Justice Department was able to find an additional 224 documents relevant to the ACLU’s 2005 request, Kamen said. They were found in three safes and in “the back of a third drawer” inside OLC’s room for highly classified documents. The documents were located by two visiting Assistant U.S. Attorneys from New York and one DOJ attorney.
Acting Assistant Attorney General for the OLC David J. Barron had to explain the loss to a federal judge in New York. He wrote: “Due to their extreme sensitivity at the time,” the relevant document set was not copied and its contents were “intermingled” with other files in the room. The documents then took the scenic tour of Washington, D.C., first going to another special room at DOJ, then to the CIA in 2007 and stopping at the Office of Professional Responsibility until March.
Kamen reported there is no word on if or when the documents might be made public.
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U.S. attorneys are accepting more FBI referrals for prosecution, convictions are up, and prison sentences are increasing, according to a report by the Transactional Records Access Clearinghouse.
Data examined showed “small but consistent year-by-year changes” during the past five years, according to TRAC, which acquired the information from the Executive Office for U.S. Attorneys through a Freedom of Information Act request.
- Referrals prosecuted rose from 51 percent in FY 2004 to 58.2 percent in FY 2008.
- Convictions from FBI referrals improved from 79.2 percent in FY 2004 to 83.5 percent in FY 2008.
- In 2004, 10,056 individuals were sent to prison as a result of an FBI investigation and the median sentence was 30 months. The number of those sent to prison dipped slightly to 9,789, in FY 2008, but the typical sentence rose to 41 months.
The report concentrates on criminal enforcement activities tracked by federal prosecutors, but it does not thoroughly explore the classified surveillance and intelligence activities of the National Security Branch or the research activities of the Science and Technology Branch.
The data varied widely in different parts of the country. TRAC ranked the top five federal districts, based on the the proportion of FBI referrals that resulted in criminal filings:
- Minnesota (Minneapolis)
- California Central (Los Angeles)
- Pennsylvania Middle (Scranton)
- Florida South (Miami)
- South Carolina (Columbia)
In each, more than three quarters of the referrals begot prosecutions. The records clearinghouse also ranked the five lowest districts — in which federal prosecutors acted on slightly more than a third of the FBI referrals:
- Alabama Middle (Montgomery)
- Mississippi South (Jackson)
- Tennessee Middle (Nashville)
- Kentucky West (Louisville)
- West Virginia South (Charleston)
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When the Justice Department issued new FOIA guidelines in March, they were largely heralded as proof of the president’s commitment to government transparency. But FOIA experts expressed some concerns about the guidelines’ language regarding pending cases — and apparently, their concerns were well-founded, according to this report by Newsweek’s Michael Isikoff.
While the guidelines instructed agencies to operate on the “presumption” of disclosure — in contrast to the Bush-era policy of holding out unless no “sound legal basis” could be found for doing so — they gave Justice Department lawyers wiggle room in pending cases.
Holder said the new guidelines should be applied “if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.” Er, yeah.
While the guidelines were generally tailored after Reno-era policy, Dan Metcalfe, the former longtime chief of FOIA policy at Justice, told Isikoff that “lawyerly hedges” make the Holder memo “astonishingly weaker” than Reno’s.
As a senator, Barack Obama denounced the Bush administration for holding “secret energy meetings” with oil executives at the White House. But last week public-interest groups were dismayed when his own administration rejected a Freedom of Information Act request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama’s “clean coal” policies.
The request is covered by the “pending” clause because it ties in with the subject of a Bush-era lawsuit for visitor-log records. Justice lawyers drafted the new guidelines in consultation with the White House Counsel Gregory Craig. The department defended the pending-litigation language.
The separate standard for “pending” lawsuits was inserted because of the “burden” it would impose on officials to go “backward” and reprocess hundreds of old cases, says Melanie Ann Pustay, who now heads the FOIA office.
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The Freedom of Information Act has come in from the cold.
Attorney General Eric Holder on Thursday issued new FOIA guidance to government agencies directing full compliance with requests for government documents. The guidance rescinds then-Attorney General John Ashcroft’s Oct. 12, 2001 memo essentially directing agencies to nit-pick FOIA requests to death by using legal technicalities to deny as many as possible.
The new FOIA guidance implements a policy articulated by President Obama on his second day in office: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, oppenness prevails.” What that means in practice: ”An agency should not withhold information simply because it may do so legally… [or] demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” Holder’s memo says. The Holder memo returns to the standards set by President Clinton’s attorney general, Janet Reno, in 1993.
The memo continues:
FOIA professionals should be mindful of their obligation to work “in a spirit of cooperation” with FOIA requesters, as President Obama has directed. Unnecessary bureaucratic hurdles have no place in the “new era of open Government” that the President has proclaimed.
Agencies should work “pro-actively” to post information on-line before it’s requested, the memo says, and generally make better use of technology to speed up the notoriously long delays (ie: strategic foot-dragging) that have long plagued FOIA disclosure.
Holder also directed the DOJ to review pending FOIA litigation in light of the “substantial likelihood that application of the [new] guidance would result in a material disclosure of additional information.” Henceforth, the DOJ will defend government agencies only if it concludes their FOIA denials were truly (not just technically) prohibited by law. DOJ will also defend statuory exemptions protecting disclosures that would harm national security, law enforcement interests and personal privacy.
Open-government activists generally applauded. But David Sobel at the Electronic Frontier Foundation struck a cautionary note in this blog post:
[I]t remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches. We will soon learn in our pending lawsuits whether the new administration is truly prepared to reverse the pro-secrecy practices of the Bush administration.
The public interest group filed a lawsuit in 2006 seeking information from the Federal Bureau of Investigation about its Investigative Data Warehouse, a database used in counter-terrorism probes. On Jan. 23 — two days after Obama’s FOIA statement — the DOJ moved for summary judgment, asserting it had fully complied with EFF’s documents request. EFF asked the U.S. District Court for the District of Columbia to stay the proceedings. The FBI and DOJ should reconsider whether their previous disclosures during the Bush administration were adequate, given the new Obama policy of openness, EFF argued.
From his remarks to senior staff today:
I will also hold myself as President to a new standard of openness. Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.
Also says he will restore FOIA:
The directives I am giving my administration today on how to interpret the Freedom of Information Act will do just that. For a long time now, there’s been too much secrecy in this city. The old rules said that if there was a defensible argument for not disclosing something to the American people, then it should not be disclosed. That era is now over. Starting today, every agency and department should know that this administration stands on the side not of those who seek to withhold information but those who seek to make it known.
My last post got me digging into the multitude of awards DOJ gives out each year, and this one caught my eye: The Attorney General’s Award for Outstanding Service in Freedom of Information Act Administration. Pretty funny.
After John Ashcroft told agencies to use any possible justification to withhold information under FOIA, Bush in 2005 issued an executive order allegedly to improve FOIA disclosure. But that did little to assauge open-government advocates. “Essentially agencies just kept moving the goal posts [for disclosure], including at Justice itself,” Thomas Blanton of the non-profit National Security Archives at George Washington University told me. “The FBI was one of the worst scofflaws.” Read Blanton’s report here. In 2007 the DOJ FOIA award winners were Kenneth A. Hendricks and Thomas E. Hitter, Attorney-Advisors for the Office of Information and Privacy. They were honored for their “tremendous efforts related to the FOIA Executive Order.” In 2007 the bi-partisan team of Senate Judiciary Committee Chairman Pat Leahy (D-Vt.) and Judiciary member Sen. John Cornyn (R-Tex.) passed a bill to de-politicize FOIA by establishing an office at the National Archives and Records Administration with an ombudsman to resolve FOIA disputes across the government and speed up compliance. Bush waited until the last minute (Dec. 31, 2007) to sign the bill. Then, the White House tried to gut it by yanking funding for the new office and shifting the money back to DOJ. One of Eric Holder’s first acts will be to issue his own FOIA memo setting policy on transparency.
Blanton said open-government advocates expect him to return at least to the “very good” Janet Reno standard, and they hope he will even “take it to the next level” by making FOIA releases accessible to everyone on the Web.