SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2018, Issue No. 42
June 28, 2018

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

A LEAK PROSECUTION THAT DIDN'T HAPPEN

Government prosecutors have been aggressively pursuing suspected leakers of classified information:

Reality Winner, accused of disclosing a document "information relating to the national defense" to a news outlet, changed her plea this week from "not guilty" to "guilty."

Former FBI agent Terry J. Albury likewise pleaded guilty last April to unauthorized retention and disclosure of national defense information.

Former Senate Intelligence Committee security officer James A. Wolfe was indicted this month for allegedly lying to the FBI in the course of a leak investigation.

And also this month, Joshua Adam Schulte was indicted for allegedly disclosing national defense information to a certain "organization that purports to publicly disseminate classified, sensitive, and confidential information."

But not every leak results in an official leak investigation. And not every leak investigation produces a suspect. Nor is every leak suspect prosecuted.

In its latest semi-annual report, the Office of the Intelligence Community Inspector General describes one recent case of an acknowledged leaker of classified information who was allowed to resign without prosecution.

The IC Inspector General "substantiated allegations that an ODNI cadre officer disclosed classified information without authorization, transmitted classified information via unauthorized means, and disclosed classified information to persons not authorized to receive it."

"During a voluntary interview, the ODNI cadre officer admitted to transmitting classified information over unclassified (internet) email to recipients not authorized to receive classified national security information."

But the matter was resolved outside of the criminal justice system.

"The U.S. Attorney's Office for the Eastern District of Virginia declined prosecution. The officer, who was retirement eligible, retired before termination," the IC IG report said.

No other details about the episode were disclosed. But the case illustrates that a variety of responses to leak incidents are available to the government short of criminal prosecution.

A House bill to authorize intelligence spending for FY 18 and 19 (HR 6237), introduced yesterday, would require expanded reporting to Congress on unauthorized disclosures of classified information.

TO FIX FOIA, "BEST PRACTICES" WILL NOT BE ENOUGH

Many executive branch agencies have significant backlogs of Freedom of Information Act requests that could be reduced by adopting procedural improvements. And some agencies have made such improvements, a new report from the Government Accountability Office says. Yet substantial backlogs remain.

See Freedom of Information Act: Agencies Are Implementing Requirements but Additional Actions Are Needed, GAO-18-365, June 25.

All of the agencies reviewed had "implemented request tracking systems, and provided training to FOIA personnel." Most of the agencies had also "provided online access to government information, such as frequently requested records..., designated chief FOIA officers, and... updated their FOIA regulations on time to inform the public of their operations."

Nevertheless, FOIA is still not functioning well system-wide.

What the GAO report should have said but did not explicitly say is that even if all agencies adopted all of the recommended "best practices" for FOIA processing, they would still face substantial backlogs of unanswered requests.

The simple reason for that is that there is a mismatch between the growing demand from individual FOIA requesters -- with 6 million requests filed in the past 9 years -- and the resources that are available to satisfy them.

In order to bring the system into some rough alignment, it would be necessary either to increase the amount of agency funding appropriated and allocated for FOIA, or else to regulate the demand from requesters by imposing or increasing fees, limiting the number of requests from individual users, or some other restrictive measure.

None of these steps is appealing and none may be politically feasible. Other than a cursory reference to "available resources," the GAO report does not address these core issues.

But in the absence of some such move to reconcile the "supply and demand" for FOIA, overall system performance is being degraded and seems unlikely to recover any time soon.

Meanwhile, government agencies have identified no fewer than 237 statutes that they say can be used to withhold information under the Freedom of Information Act, according to the GAO report, which tabulated the statutes. Since 2010, agencies have actually used 75 of those statutes. GAO did not venture an opinion as to whether the exemption statutes were properly and justifiably employed.

Another new report from Open the Government finds that "FOIA lawsuits grew steadily across the government by 57-percent overall for a ten year period, from 2006-15, and increased sharply by 26-percent in FY 2017."

IMMIGRATION, TRADE, AND MORE FROM CRS

During FY 2016, the Department of Homeland Security detained 352,880 noncitizens, the Congressional Research Service noted in a newly updated report, citing the most recent DHS statistics. See A Primer on U.S. Immigration Policy, June 22, 2018:

Other recently issued CRS reports include the following.

Enforcing U.S. Trade Laws: Section 301 and China, CRS In Focus, June 25, 2018:

Debates over Exchange Rates: Overview and Issues for Congress, updated June 22, 2018:

U.S. Global Health Assistance: FY2001-FY2019 Request, updated June 22, 2018:

The G-7 Summit in Charlevoix, Canada: Changing U.S. Leadership in Global Forums, CRS Insight, June 25, 2018:

The United Arab Emirates (UAE): Issues for U.S. Policy, updated June 22, 2018:

Hemp as an Agricultural Commodity, updated June 22, 2018:

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

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