SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2017, Issue No. 34
May 8, 2017

Secrecy News Blog: https://fas.org/blogs/secrecy/

NUMBER OF FOIA REQUESTS REACHES RECORD HIGH

Federal government agencies received more Freedom of Information Act requests last year than ever before, the Justice Department reported last week, reflecting a steadily growing demand for access to government information.

Nearly 790,000 FOIA requests were received in FY 2016, an increase of more than 10% from the year before. The majority of requests were submitted to the Departments of Homeland Security, Justice, Defense, Veterans Affairs, and the National Archives.

Approximately 760,000 requests were processed throughout the year (including denials, and administrative or procedural closures). Requests were fully granted in 23.1% of the the cases, and partially granted in 36.8% of them.

The total estimated cost of implementing the FOIA in 2016 was more than $500 million. Fees collected from requesters recovered less than 1% of that amount, the DOJ report said. See Summary of Fiscal Year 2016 Annual FOIA Reports Published, DOJ Office of Information Policy, May 3.

Almost everyone involved with the FOIA -- requesters as well as agencies -- seems to be dissatisfied with the way the process works. It can be excruciatingly slow, with response times often counted in years. Decisions to withhold information frequently appear arbitrary, excessive or otherwise inappropriate. The system is inequitable, as super-users who file hundreds or thousands of requests (and those who are able and willing to litigate their requests in court) consume disproportionate amounts of government resources, putting more occasional requesters at a disadvantage. And so on.

These are mostly complaints that the FOIA has failed to live up to expectations.

A deeper criticism would be that the FOIA process as it currently exists is not simply inadequate, it is positively counterproductive.

"FOIA not only fails to deliver on ostensible goals such as participatory policymaking, equal access to information, and full agency disclosure, but also has evolved to *subvert* some of these goals as well as other public law values," writes David E. Pozen of Columbia Law School in a blistering new critique.

FOIA "systematically skews the production of information toward commercial interests and facilitates powerful antiregulatory agendas. The inadequacies of FOIA's original design have been exacerbated by external developments, including the decline of the traditional news media and the rise of hyper-adversarial watchdog groups on the right. *Our veneration of FOIA has blinded us to the politics of FOIA*."

"The most promising path forward," he suggests, "involves displacing FOIA requests as the lynchpin of transparency policy and shoring up alternative strategies, above all affirmative disclosure frameworks that release information in the absence of a request."

Counterexamples and counterarguments will likely occur to many readers of his article, though the author has anticipated many of those. One possible conclusion that might emerge from Pozen's thoughtful critique is that while FOIA is still needed to pursue contested areas where government is reluctant to disclose information, it is poorly suited to serve as the primary foundation or anchor of open government.

See Freedom of Information Beyond the Freedom of Information Act by David E. Pozen, University of Pennsylvania Law Review, vol. 165, pp. 1097-1158, 2017.

TRUMP OBJECTS TO LEGISLATED LIMITS ON SECRECY

In the new Consolidated Appropriations Act of 2017 (section 8009), Congress mandated that no new, highly classified special access programs may be created without 30 day advance notice to the congressional defense committees.

But in signing the bill into law last Friday, President Trump said he would not be bound by that restriction.

"Although I expect to be able to provide the advance notice contemplated by section 8009 in most situations as a matter of comity, situations may arise in which I must act promptly while protecting certain extraordinarily sensitive national security information. In these situations, I will treat these sections in a manner consistent with my constitutional authorities, including as Commander in Chief," he wrote in a May 5 signing statement.

More generally, Trump suggested that his power to classify national security information is altogether independent of Congress. "The President's authority to classify and control access to information bearing on the national security flows from the Constitution and does not depend upon a legislative grant of authority," he wrote.

This is a paraphrase of language in the 1988 US Supreme Court opinion in Department of the Navy v. Egan (The President's "authority to classify and control access to information bearing on national security... flows primarily from this Constitutional investment of power in the President and exists quite apart from any explicit congressional grant.")

But left unsaid in President Trump's signing statement was that the Supreme Court has also held that Congress could modify existing classification procedures or create its own secrecy system.

Thus, in EPA v. Mink (1973), the Supreme Court stated: "Congress could certainly have provided that the Executive Branch adopt new [classification] procedures, or it could have established its own procedures -- subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering."

And, as noted by Jennifer Elsea, Congress has in fact legislated a classification regime for nuclear weapons-related information in the Atomic Energy Act.

So the newly legislated notification requirements concerning special access programs appear to be well within the constitutional authority and power of Congress.

The Intelligence Authorization Act for FY 2017 was incorporated into the Consolidated Appropriations Act as "Division N" and enacted into law.

President Trump's reservations about various provisions in the new appropriations act were presented in the first signing statement issued by the current Administration (h/t Charlie Savage).

NOTES ON LOS ALAMOS, 1953

A previously unpublished account of life in the Los Alamos nuclear weapons laboratory in the early 1950s describes a community determined to achieve, and to present, a semblance of conventional suburban life. It was circulated last month by Los Alamos historian Roger A. Meade.

"In 1954 an unknown author drafted a report, reprinted below, describing the Laboratory and the community as they existed in late 1953," Meade wrote. "This report, perhaps intended to be crafted into a public relations document, is valuable because it gives us an autobiographical look at Los Alamos during the first half of the 1950s."

"First-time visitors to Los Alamos often come with a preconceived notion that the will find something awesome and abnormal about the Los Alamos community," the report says. "They leave, however, with the feeling of having visited an interesting but a perfectly 'normal' American community."

"Los Alamos has fourteen churches representing nearly all denominations. Land for church buildings is available on 99-year leases at a nominal fee."

"Los Alamos offers a wide selection of cultural and recreational activities. Presentations are made regularly in the commodious Civic Auditorium by such groups as the Civic Orchestra, the Concert Association, the Little Theatre, the Film Society, and the Los Alamos Concert Band. There are frequent lectures and forums; many distinguished speakers have appeared at the Civic Auditorium. Two motion picture theaters have continuous daily showings."

See Notes on Los Alamos, Report No. LA-UR-17-22764, published April 5, 2017.

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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