Some context for some surveillance

When news broke recently that federal officials were pushing for new regulations to facilitate online eavesdropping (“U.S. Tries to Make It Easier to Wiretap the Internet”, New York Times, September 27, 2010), it seemed like there were two ways to interpret the situation:

Did the proposed powers represent a significant change from the status quo?

The administration’s proposal… would require reconfiguring of the Internet to provide easier access to online communications. —ACLU

Or did the proposed powers merely enable law-enforcement officials to continue doing what they had been doing?

We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security. —FBI general counsel Valerie E. Caproni

We couldn’t help thinking this sounded familiar.

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ICE rethinks an immigration disclosure; hoping for a trend

In light of President Obama’s first-full-day-in-office proclamation about transparency and FOIA, and the subsequent FOIA memorandum from Attorney General Eric Holder, we have been both hopeful and cautious when it comes to evaluating the Administration’s progress. Evaluating progress means looking at changes in numbers, and changes in experiences. One of those experiences involving a small newspaper and a story about immigration-related arrests may show the trends are encouraging.

Four years ago, Immigration and Customs Enforcement (ICE) arrested twenty-six people at a Bellingham, WA business, on suspicion of illegal immigration. A local newspaper, the Bellingham Herald, promptly filed a FOIA request for the names of the people arrested, only to have the request languish for over three years. Finally, in July 2010, the Department of Homeland Security (DHS) notified the paper that its FOIA request “was being finally and officially denied.”

Upon questioning, a department spokeswoman explained that the request had been processed under the rules of the previous administration – but she volunteered that there was other information which the office could provide. Department officials eventually “provided the nationalities, ages, genders and immigration status of those who were arrested.”

All is not sunshine, however; the department did continue to withhold the names of the arrestees, citing privacy laws – but in light of our previous coverage of DHS (and specifically ICE) stories that used FOIA, it is nice to see the agency take the initiative to respond to FOIA requests with the new rules and principles at heart.

One should be careful when trying to infer larger trends, or judge policies, based on individual events. But in this case, we hope this case is reflecting a rule that many agencies are rethinking their disclosure decisions.

A win for OGIS!

Today The Associated Press story showing that political officials reviewed FOIA requests proves that the Office of Government Information Services can effectively resolve disputes and avoid potential litigation (not that we necessarily doubted OGIS).

(For full disclosure, the AP is a member of the Sunshine in Government Initiative.)

AP’s Ted Bridis reports that political appointees at the Department of Homeland Security ordered career staff to give them a heads up when a FOIA request came in for sensitive information.  AP describes it this way:

[DHS] detoured hundreds of requests for federal records to senior political advisers for highly unusual scrutiny, probing for information about the requesters and delaying disclosures deemed too politically sensitive

As of June 1, OGIS reported closing 182 cases since opening their doors in September 2009.  The vast majority appear to be breakdowns in customer service: requests fall through the cracks, a requester needs more information about FOIA or where to submit a request, etc.

This is routine stuff that for the most part the agencies themselves should be taking care of.  It’s frustrating for the requester, and OGIS does a service by helping requesters with these issues, but these are things agencies should be fixing.

But this particular request by the AP appears to be a case where the agency did not want to disclose.  An independent eye (OGIS) on the dispute was necessary to resolve the issue and possibly prevented costly litigation.

This is exactly what the OGIS was created to do.

DHS accounts for nearly all backlog reductions in 2009. That’s right, DHS

FOIA followers have read that the aggregate government-wide FOIA backlog is down from about 157,000 to about 102,000 requests, a reduction of about 35 percent. (We’ll use round numbers for ease of reading.) This statistic shows broad improvements.

This must be a general trend of agencies getting the message and doing a better job, right? Wrong.

The Department of Homeland Security accounts for all of the backlog reductions.

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DHS Says Rules Limiting Access Don’t Apply to Public

While pressure is to punish the press for publishing stories that rely on unauthorized disclosures of classified information is certainly far from the fever pitch of 2006 and 2007, Congress is still concerned about the publication of information it wants to keep from the public.   Secrecy News reports (“DHS Says It Cannot Stop Private Posting of Sensitive Info“) that the Department of Homeland Security told lawmakers that the Department has no authority to act when the public publishes information the department deems sensitive.

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Can an agency get credit if it reduces backlogs?

This may sound like asking whether a tree falling in a forest with no one around makes any noise at all, but bear with me here:  If an agency improves their backlog of FOIA requests — actually makes a dent in it — would anyone know?

Maybe not.

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