Friday, January 21, 2022

FOIA Process: Not All Good or Bad

    The Freedom of Information Act is a valuable resource. It can be employed for a wide variety of useful purposes. 

Readers of my offerings have become acquainted with ways I rely on the FOIA to shed light on circumstances of interest. I have a great deal of appreciation for FOIA personnel employed at government agencies, the online reading rooms maintained by those agencies, and the painstaking aspects of the entire process. The work is important, and I respect the stamina it takes. 

That stated, anyone remotely familiar with the FOIA process has heard it referred to as "broken." Practicality can be called into question, with requests infamously taking years to get final responses, which by no means ensures material will be forthcoming. Below are some adventures I've had with the FOIA process.

Doc's in the Mail
Gen. Walter Bedell Smith,
Director of CIA 1950-1953
    On Nov. 28 I requested records on the late lawyer and government official Gordon Gray from what I've come to feel is the typically FOIA-reliable FBI. Mr. Gray directed the Psychological Strategy Board under DCI Smith's Central Intelligence Agency in 1951 and 1952.

The Bureau promptly responded by email Dec. 3, providing several links to material responsive to my request. Per standard protocol, the material had been posted for me to download in pdf in the FBI FOIA portal. 

Unfortunately, one of the links was dead because the corresponding file had not been posted. Compounding the complications was the fact the number of pages specified to be contained in the filled request indicated the missing pdf was the most substantial part of the haul, easily a three-digit number of pages.

This began a series of email correspondence with the FBI. I was initially informed the links would be reposted. They weren't. 

I was later informed the material had been emailed to me. It wasn't.

After continuing to stay on it and submit inquiries, I was then advised Jan. 6 (by then a full month into the saga) there were complications with sending the material electronically, so it would be delivered through standard mail. I informed the Bureau today, Jan. 21, I had still received no package. In their defense, I was promptly emailed an apology for the delay, and informed it was mailed yesterday.

Also in their defense, during the course of my attempts to get the full amount of material responsive to the request, FBI made me aware of a potentially responsive file at the National Archives. A request was subsequently submitted to NARA, which, like the Bureau, I have a lot more good things to say about its handling of FOIA requests than bad.    

NARA responded Dec. 15 it initially assessed Gordon Gray to indeed be the subject of the file sought, compiled by the FBI during investigation conducted between May 1961 and November 1975. The file consists of about 250 pages. It must be processed for release, which is projected to take until March 2025, a timeframe which is standard in my experience.  

Say Again

    On July 20, 2020, I submitted a request to the CIA for a Mandatory Declassification Review, or MDR. My hope was that a document I came across in a CIA archive would be reviewed for further release. In practical terms, I was requesting they'd remove redactions from the document, which consisted of correspondence from 1959 and appeared to have been last reviewed in 2003. 

Jan. 14, 2022, I received an emailed final response from the CIA. The body of the response stated, “We completed a thorough search for records responsive to your request and located the enclosed document, which we can release in segregable form, with deletions as marked...”

However, there was no enclosed document as described. I immediately advised CIA by telephone.

William J. Burns,
Director of CIA since March 2021
I soon received a second Jan. 14 email from CIA, carrying a second final response. Perhaps you can imagine my disappointment and confusion when I read, “Please note that the document you requested is unclassified, and as such, is not subject to review under the [MDR] Order. Therefore, we must decline your request.”

They're not getting rid of me that easy!

On Jan. 18 I submitted a request to CIA for an Administrative Appeal. I requested the circumstances be further considered, explaining I was hoping redacted sections on the document in question could be reviewed and released.

Jan. 19 I received a response (that was quick!) from CIA to my request for Administrative Appeal. The response reiterated the document is unclassified and therefore not subject to review, adding that the Agency must decline to process the appeal. It was further stated I could find more about CIA regulations and appeal rights under subparts 1900.42(a) of title 32 of the Code of Federal Regulations. (For those of you not as familiar as I with intricacies of big important intelligence agency speak, that means they promptly told me GTFO.)

I was a bit curious what the cited subpart actually says. I soon discovered it states, “A right of administrative appeal exists whenever access to any requested record or any portion thereof is denied,” the very such circumstances I was seeking to pursue.

Okay, now, in all seriousness, I could be way off with this. It's not like I really know what I'm doing. There could easily be circumstances I don't properly understand about the MDR process as it relates to CIA and the specific records in question. I got my degree at Google and all that, but there are a pretty limited number of ways to skate around the initial two email responses, which stated a document was enclosed, which was not actually enclosed, followed by informing me the request was denied. 

As of this writing, I continue to seek clarification and resolution, so Wednesday night I submitted a request for review of the circumstances to the Interagency Security Classification Appeals Panel. I'll let y'all know when nothing comes of it!  

Use Your FOIA    

    I sincerely strongly encourage researchers and interested parties to utilize the FOIA. The above examples are by far exceptions to the rule.

A major reason I have come to particularly depend on the FBI is I have now filed dozens of requests to the Bureau on NICAP-related figures alone. I find the procedures to be reasonable on requesting records pertaining to deceased individuals, and the guidelines are not difficult to follow. The FBI might prove to be a productive resource on any number of historic topics; if the topic mattered, it is entirely likely Director Hoover had an agent on it, if not an entire series of field offices. 

The FOIA takes time. It takes patience. It has some bumps and sometimes it's just plain impractical, but a lot of things are that are worth doing. Hang in there, or just get started. In the meantime, I gotta go check my mail!    

No comments:

Post a Comment