National FOIA Portal Should be Made Priority as Agencies Prepare for Decommissioning of FOIA Online: FRINFORMSUM 2/16/2023

FOIA Online Sunset is Imminent

FOIA Online is set to be decommissioned on September 30 of this year. More than a dozen agencies still actively use the service, raising questions about what they will do going forward: will they join FOIA.gov – which currently appears to stand the best chance of becoming the national FOIA portal that was mandated in the 2016 FOIA Improvement Act – or will they develop their own, siloed portals? 

The question is a timely one, not only because Sunshine Week, the annual celebration of the public’s right to know, is fast approaching. With the joint National Archives and Records Administration (NARA) and Office of Management and Budget (OMB) announcement that all agencies must manage their permanent and temporary records in electronic format by June 2024, it is the right time for agencies to develop comprehensive, integrated IT solutions that will enable them to meet both their records management and FOIA obligations – while also moving in a direction that makes a true national FOIA portal a reality. To do so, agencies will need clear direction from OMB, NARA, and the Department of Justice. 

The September 14, 2022, FOIA Advisory Committee meeting contained a discussion of the problems inherent in the sunsetting of FOIA Online, which was stood up by the Environmental Protection Agency, a relatively small agency that shouldered a disproportionate amount of the burden for maintaining a portal that was used by dozens of agencies at its height.

•  Alex Howard, director of the Digital Democracy Project, initiated the conversation by suggesting that an assessment of what agencies have done since leaving FOIA Online, and how requesters have been impacted by the changes, would be helpful. 
• Ben Tinga, a committee member from the business management firm OPEXUS, noted, “from an industry perspective that a lot of this is moving forward is currently an activity of agencies transitioning from their FOIAonline platform to other platforms. It looks like the experience is not so much process-focused but really in a market research phase where each one is finding the tools that best meet their needs.”
• The Department of Commerce’s Allyson Dietrick said of the sunsetting of FOIA Online, “We were one of the 20 or so affected agencies. In terms of input, there’s a short timeframe, even with the acquisition schedule. I’m not so sure how much work can be done in terms of the successor to FOIAonline, especially because agencies need to make their own choices about which software fits their needs going forward.”

These are all valuable perspectives, but they do not get us any closer to understanding what comes next. This is understandable in a sense; there are over 100 agencies that have FOIA offices, and without clear direction and guidance from the top, each agency will be left to its own devices. This is a clear instance where both the Department of Justice, OMB, and NARA need to weigh in, sooner rather than later. 

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U.S. Declassifies Info on Chinese Surveillance Balloon Collected from U-2 Spy Planes

The State Department declassified information gathered from American U-2 spy planes on the Chinese surveillance balloon program last week. While much of the information was already public, the Washington Post notes that, “its wider publication to the media suggested an effort by the U.S. government to name and shame Beijing’s surveillance tactics,” as well as “to elevate China’s balloon espionage despite warnings from China’s Foreign Ministry that doing so could jeopardize bilateral relations.” (The U-2 spy planes have a fascinating history; visit NSArchive’s website for information on their collection of signals intelligence during the Cold War, and the secret history of Area 51.) 

The Post reported this week that U.S. officials tracked the spy balloon since its launch from Hainan Island and that it initially appeared to chart a path towards Guam, possibly with the intent to spy on U.S. bases there and in Hawaii, but then its course suddenly changed. Officials are “now examining the possibility that China didn’t intend to penetrate the American heartland with its airborne surveillance device.” 

This is the second notable instance of the Biden administration declassifying intelligence to promote national security and foreign policy objectives; last year the Biden administration declassified information to convince skeptics of the seriousness of Russia’s preparations to invade Ukraine. 

DOJ Seeks to Pierce Attorney-Client Privilege Claims In Trump Document Case

Justice Department officials are seeking approval from Judge Beryl A. Howell, Chief district judge of the United States District Court for the District of Columbia (and who will step down from her post next month) to peel back claims of attorney-client privilege in the investigation of President Trump’s handling of classified documents. The New York Times reports that prosecutors are seeking approval of the crime-fraud exception in an effort to compel testimony from one of Trump’s lawyers, M. Evan Corcoran, who invoked attorney-client privilege when he appeared before a grand jury this month and refused to answer questions about his role in the investigation of classified documents at Mar-a-Lago. 

The crime-fraud exception is used when prosecutors believe “that legal advice or legal services have been used in furthering a crime.” The exception was cited last year when another Trump lawyer, John Eastman, cited attorney-client privilege to hide records from the House committee investigating the January 6 attack. He was overruled by Judge David O. Carter, who cited the crime-fraud exception, thereby allowing the committee access to the records. 

New From NSArchive: Launching the Clinton Administration Russia Policy in 1993

With the Cold War coming to an end and the Soviet Union dissolving, President Bill Clinton was determined not to miss a historic opportunity to help Russia transform into a democratic capitalist state, according to a set of declassified State Department records recently published by the National Security Archive.

The publication includes a transcript of the first Clinton-Yeltsin telephone conversation in 1993, an insightful transition memo from the outgoing Secretary of State, Lawrence Eagleburger, and a high-level briefing from Clinton’s top Russia aid, Strobe Talbott. The documents show Clinton, his advisers and their predecessors in the Bush administration wrestling with a number of key policy challenges, including the presence of nuclear weapons in three former Soviet republics, the rapidly plunging Russian economy, and rising tensions between President Boris Yeltsin and the Russian parliament in 1992. Even as Clinton pondered these important policy choices, he and his advisers felt deep personal empathy for the embattled Russian president and the reform project that he had embarked upon.

Declassified in response to Freedom of Information Act (FOIA) requests by the National Security Archive, these records are early highlights from a forthcoming reference collection on U.S.-Russia relations covering the entire 1990s. That set, US-Russian Relations from the End of the Soviet Union to the Rise of Vladimir Putin, will be published by ProQuest as part of the award-winning Digital National Security Archive series.