In a recent development that has raised eyebrows among transparency advocates, the National Security Agency (NSA) has taken a firm stance against the release of information from Intellipedia, the Intelligence Community’s collaborative platform. This decision comes as a stark departure from the agency’s previous protocol, which for over a decade allowed the release of records from this platform under the Freedom of Information Act (FOIA).

The Appeal and the NSA’s Response

As first reported by The Black Vault, this issue came to light when a series of FOIA requests were recently closed by the NSA, all seeking information from Intellipedia. The newly found stance produced a “GLOMAR Response” in each case where the agency could “neither confirm nor deny the existence or nonexistence of any responsive material contained within the Intellipedia collaborative platform.” However, for more than a decade, The Black Vault received a long list of Intellipedia entries released by the NSA.

There have been 130 appeals submitted by The Black Vault fighting this obfuscation.

The first of these 130 appeals has now had a decision rendered, and it was met with a response that has set a concerning precedent for future requests along with the remaining 129 appeals that are still being processed.

The NSA stated, “Based on my review, the appropriate response in this case is to neither confirm nor deny the existence or nonexistence of any responsive material contained within the Intellipedia collaborative platform.”

The agency further elaborated that revealing any information, even the mere acknowledgment of a topic’s existence within Intellipedia, could “result in the exposure of intelligence information, sources, methods or activities.” They argue that such exposure could “harm our national security and severely undermine the NSA mission.”

While the NSA acknowledges past releases from Intellipedia, they now believe that “continued release could harm national security.” Their rationale? Continuous releases could allow any requester to create a “roadmap of the Intelligence Community’s interest and activities,” revealing its sources and methods.

The Implications for Transparency

This shift in the NSA’s stance is more than just a procedural change. It represents a significant blow to transparency and the public’s right to know. For over a decade, Intellipedia served as a window into the workings and interests of the Intelligence Community. Now, that window has been shuttered.

The NSA’s decision raises a crucial question: If the agency can change its protocol on Intellipedia, what stops them from doing the same with other platforms or sources of information? By seemingly creating a new FOIA exemption, the NSA has set a precedent that could be applied to other areas, further limiting the public’s access to information.

A Departure from Protocol

It’s essential to highlight that this new stance is not rooted in any recent changes to the FOIA or its exemptions. Instead, it appears to be an internal decision by the NSA, one that contradicts their protocol for more than a decade. Such a departure without clear legislative or judicial backing is concerning, as it suggests that agencies can reinterpret or redefine transparency standards at will.

The NSA’s recent decision on Intellipedia is more than just a denial of a FOIA request. It’s a signal of a broader shift away from transparency and a potential harbinger of things to come. As the public and transparency advocates grapple with this change, it’s crucial to remain vigilant and question the implications of such decisions on our right to know and the principles of open government.

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The post The NSA’s Intellipedia Decision: A Precedent for Reduced Transparency? first appeared on The Black Vault.

The following documents were obtained through a FOIA lawsuit by the Freedom of the Press Foundation.  Below the documents, you will also find a copy of the original, and well documented, press release article, as published by the Freedom of the Press Foundation on March 18, 2016.

Documents Released

 Justice Department’s opposition to FOIA reform [144 Pages, 12MB]

Additional Information

This work below is licensed under a Creative Commons Attribution 4.0 International License by the Freedom of the Press Foundation.

New documents show the Obama admin aggressively lobbied to kill transparency reform in Congress

March 8, 2016

By Trevor Timm

New documents obtained through Freedom of the Press Foundation’s lawsuit against the Justice Department reveal that the Obama administration – the self described “most transparent administration ever” – aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.

Three months ago, we sued the Justice Department (DOJ) under the Freedom of Information Act (FOIA) for communications between the DOJ and Congress, since there were vague reports that the DOJ may have opposed the bill – despite much of it being based word-for-word based on the Justice Department’s own policies.

Today, we are publishing a detailed memo authored by the Justice Department that strongly objected to almost every aspect of FOIA reform put forth by the House of Representatives at the time.

The bill in question – known as the FOIA Act – was unanimously passed by the House in early 2014. The Senate passed a similar bill – known as the FOIA Improvement Act – in December of 2014, but a final vote in the House to merge the two bills was held up at the last minute by then-Speaker of the House John Boehner and the session of Congress ended before it could become law. It was unclear at the time why the bill did not come up for a final vote, but the Washington Post later reported that a few federal agencies—including the Justice Department—had “warned” lawmakers about some provisions in the bill.

But these new documents show it went well beyond that: the Justice Department vehemently objected to both House and Senate members on nearly all aspects of the bill from the very start, and made clear: “The Administration strongly opposes passage of [the FOIA Act].”Notably, the Justice Department indicates that this policy memo (published in full below) is not just the agency’s individual opinion, but that it is speaking for the entire Obama administration.

The Obama administration’s specious objections to FOIA reform were manifold. They were against codifying the Obama administration’s “presumption of openness” policy that Obama declared upon his first month in office, they were against Congress mandating that the federal government create a unified online portal to process FOIA requests, they were against mandating discipline for FOIA redactors who break any of rules or regulations for processing FOIA requests, and they were against providing more reporting and oversight to Congress to make sure FOIA was being complied with.

The administration tried to couch some of its opposition in concern that the bill would “cause delays” in the FOIA process, despite the fact that many of the provisions were written to speed up the process, modernize the system with an online portal, and encourage proactive disclosure by making more information available to the public without even having to file a request. Concerning other provisions, the DOJ claimed the administration is not opposed in principle, but its is against seeing them codified into law — which allows the Executive Branch to delay implementation indefinitely and gives the next administration carte blanche power to rescind any good policies the Obama administration did put in place.

Most importantly, the administration was vehemently opposed to the “foreseeable harm” provision, also known as the “presumption of openness” standard. During President Obama’s first few weeks  in office, Attorney General Holder made clear that the Justice Department would defend an agency’s decision to withhold information from the public “only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions [in the FOIA], or (2) disclosure is prohibited by law.” The FOIA Act would have simply made this policy the law:

An agency may not withhold information under this subsection unless such agency reasonably foresees that disclosure would cause specific identifiable harm to an interest protected by an exemption [in the FOIA], or if disclosure is prohibited by law.

Doesn’t sound controversial at all, right? While, the DOJ noted it was “seemingly analogous to the Attorney General’s ‘foreseeable harm’ standard contained in his 2009 FOIA Guidelines,” it referred to this language as “particularly pernicious.” They claimed a slight word change from the DOJ’s own policy would dramatically expand current policy; yet critically, they stated that they would be against it even if the language was exactly the same as their own stated policy. From the memo:

To be clear, we do not believe that this is fixable by amending the language, because any codification of a foreseeable-harm standard would undermine proper FOIA administration by requiring judges to determine on a document-by-document, subjective basis whether withholding is proper.

Imagine that: giving judges the power to be able to determine whether the government was lying!

While the Freedom of Information Act remains a valuable tool (this lawsuit can attest to that), any reporter who has filed a FOIA request can corroborate the fact that the law is badly broken. Multiple investigations have shown that the Obama administration has been the most secretive ever when it comes to FOIA. Requests can often take years to be fulfilled if at all, and the only way to get results is to sue, like we were forced to. (We did not receive any documents for over a year from our first requests, and only received these documents after filing a lawsuit).

This summer is the 50th anniversary of the Freedom of Information Act, and Congress is yet again debating a FOIA reform bill, this time with even more holes in it than last time. We hope that Congress will amend the proposed reform in the strongest possible way and send it to the president’s desk with the same message they did fifty years ago when the Johnson administration opposed it, yet was forced to sign it anyways: transparency is vital to democracy.

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Special thanks to our amazing pro-bono legal counsel working on this case,Marcia Hofmann and D. Victoria Baranetsky, who did all the hard work to make this lawsuit possible.

The post Did the Obama Administration Lobby to Kill FOIA/Transparency Reform? first appeared on The Black Vault.