Senate Confirms PCLOB Chair

By Elizabeth

The Senate has voted to confirm David Medine as Chairman of the Privacy and Civil Liberties Oversight Board (PCLOB), one year after he was favorably reported by the Judiciary Committee and nine months after the Senate moved to confirm four other nominees to the Board. In a statement earlier today, Judiciary Committee Chairman Patrick Leahy (D-Vt.) lamented the delay in taking up Medine’s nomination, but noted that after a year of obstruction the PCLOB “will finally be able to begin to carry out its important work on behalf of the American people.”

Created in 2004 by the Intelligence Reform and Terrorism Prevention Act(P.L. 108-458) at the recommendation of  the 9/11 Commission, the PCLOB is charged with reviewing privacy and civil liberties issues impacted by the government‘s national security policies and programs. But hampered by politicking, the board made little progress in the first several years of its existence. AALL has repeatedly expressed concern that without nominated and confirmed members, the PCLOB could not perform its critical mission to ensure post-9/11 intelligence collection efforts  do not improperly infringe on Americans’ rights. Although the Senate had confirmed the other four members of board last summer, the chair is the board’s only full-time member and only member with the authority to hire a staff.

AALL applauds the confirmation of David Medine today as a considerable step forward. We have recently joined several civil liberties organizations to urge the PCLOB’s focus on a variety of issues related to national security policies and programs, including the Foreign Intelligence Surveillance Act (FISA), classification policy, cybersecurity, state secrets privilege, National Security Letters (NSLs), and the PATRIOT Act.  The Cyber Intelligence Sharing and Protection Act (CISPA), which recently passed the House, would assign additional oversight responsibilities to the Board regarding the government’s use of data collected from private companies. It is our hope that with the confirmation of Chairman Medine, the Board will finally be able to begin to make progress on its crucial mission.

Sunshine Week in Review

By Elizabeth

As Emily recently shared, last week marked the ninth annual Sunshine Week, a time to reflect on the state of public access to government information and work together to make our government more transparent. In addition to the release of two new reports to which AALL contributed, we were busy celebrating Sunshine Week at events across Washington, DC.  Read on for event recaps and a few exciting legislative developments.

On Wednesday, the Senate Judiciary Committee held a hearing entitled “We the People: Fulfilling the Promise of Open Government Five Years After the OPEN Government Act.” Under the leadership of Chair Senator Patrick Leahy (D-VT) and Ranking Member Senator Chuck Grassley (R-IA), the committee expressed frustration with federal agencies’ inability to comply with a 2007 open government law that Congress enacted to accelerate processing of Freedom of Information Act (FOIA) requests. On the first of two panels, witnesses included Miriam Nisbet, Director the Office of Government Information Services, which was created by the OPEN Government Act, and Melanie Pustay, Director of the Office of Information Policy at the Department of Justice. On the second panel, consisting of open government advocates, speakers charged Pustay with exaggerating the progress of the Obama administration. While agencies have improved the processing of FOIA requests by reducing average processing times and cutting down on the backlog of requests, the information available to requestors is still unsatisfactory. Full releases of documents declined to the lowest level on record in 2012, while 52 out of 99 federal agencies have not changed their freedom of information regulations to meet the requirements of the OPEN Government Act of 2007. The Justice Department has been particularly problematic, testified Thomas Blanton, director of the National Security Archive at George Washington University. Pustay contended the new regulations were optional.

At the same time as the Senate hearing, the House Committee on Oversight and Government Reform hosted its Sunshine Week event, a hearing entitled “Addressing Transparency in the Federal Bureaucracy: Moving Toward A More Open Government.” Committee Chair Representative Darrell Issa (R-CA) and Ranking Member Elijah Cummings (D-MO) used Sunshine Week as the impetus for introducing draft legislation to amend FOIA.  The draft bill, which AALL supports, is ”designed to strengthen transparency by ensuring that legislative and executive action to improve FOIA over the past two decades is fully implemented by federal agencies,” said Rep. Issa.

Representative Wm. Lacy Clay (D-MO) also reintroduced legislation on Wednesday aimed at enhancing transparency. H.R. 1104, the Federal Advisory Committee Act Amendments of 2013, would strengthen the Federal Advisory Committee Act (FACA), landmark legislation authored by Rep. Clay, Rep. Cummings, and Rep. Gerald Connolly (D-VA). “This bill opens up the Federal Advisory Committee selection and oversight process by providing greater transparency and ensuring real independence for appointees,” said Rep.  Clay.  “The act also imposes much tougher standards to ensure that committee members are insulated from political pressure to influence their recommendations.  Finally, my act would require any FACA appointee selected by the President or an agency to provide expert advice to fully comply with all conflict of interest rules and federal ethics laws.”

Other Sunshine Week events included a timely panel discussion on secrecy, security, and classification reform, hosted by the Brennan Center for Justice. Panelists heard from Public Interest Declassification Board (PIDB) Chair Nancy Soderberg on the PIDB’s recommendations for a classification system overhaul and responded to the proposals. The issue of how the US government treats state secrets has gained much attention in recent weeks as the White House has come under intense pressure to make public OLC memos on the targeted drone program—in part thanks to a 13-hour filibuster by Senator Rand Paul (R-KY).

We concluded Sunshine Week by co-sponsoring the annual National Freedom of Information Day conference at the Newseum, which brought together groups concerned with freedom of information and open records, including FOI advocates, government officials, lawyers, librarians, journalists and educators. This year’s program invited members of the Obama administration to engage in conversation with open government advocates over the progress seen in the President’s first term. The late internet activist Aaron Swartz was this year’s recipient of the ALA James Madison Award, while winners of Sunshine in Government Award included Senator Ron Wyden (D-OR) for his commitment to openness and transparency, and Environmental Protection Agency employees Tim Crawford and Larry Gottesman, who created FOIAOnline.

NDC Completes Analysis of 361 Million Page Backlog

By Elizabeth

In its sixth bi-annual report on the status of the National Declassification Center (NDC), the National Records and Archives Administration (NARA) announced that the NDC has completed its assessment analysis of 361 million pages of classified documents in its backlog. NARA reports all backlog series are “in the proper queue” for the final quality review and processing stages, while many have completed all processes.

Established by Executive Order in late 2009, the NDC has the vital task of preparing the revised backlog for public release by December 31, 2013. To date, the assessment process has resulted in the release or reclassification of 90 million historical pages. NDC Director Sheryl Shenberger cited a voluntary commitment by her staff to work extra hours as the reason for meeting the milestone.

In its 2012 Secrecy Report, the OpentheGovernment.org raised questions about the likelihood the NDC would meet its goal for declassifying its records on time—a point of contention with Shenberger last July at the AALL Annual Meeting program, “The National Declassification Center – Will It Meet Our Expectations”. The NDC’s main challenge is the onerous requirements of the Kyl-Lott amendment, which requires a certification that the collection is “highly unlikely” to contain nuclear weapons information. Nearly 100 million backlog pages still require some version of page-level review, a “highly unlikely” certification, or additional documentation as to their Kyl-Lott review status. These stringent requirements could prevent the NDC from meeting its goal.

AALL commends the NDC on its progress thus far. With many of these records of great interest to legal researchers, we encourage the NDC’s goal to continue declassification of historical documents in a timelier manner by tracking all records from accessioning to their final availability.