Public Comments Submitted by Patrick G. Eddington on September 15, 2020
From: Patrick G. Eddington <peddington@cato.org>
To: <foia-advisory-committee@nara.gov>
Subject: Cato Institute request for the FOIA Advisory Panel
Date: Tues, September 15, 2020 at 11:10 AM
To the FOIA Advisory Committee:
On behalf of the Cato Institute, I’d like to take this opportunity to raise some issues/bring some things to your attention that I hope the Committee will have the time and willingness to examine.
First concerns Cato’s just-concluded FOIA lawuit against the Defense Department over the cancelled NSA TRAILBLAZER and THINTHREAD programs (Eddington v DoD IG, 17-cv-128). We had to settle because the 2016 law left the NSA Act of 1959 (P.L. 86-36, a (b)(3) exemption statute) outside the scope of the “foreseeable harm” standard/test. You can read about the outcome here:
I’m very likely going to file a formal complaint against NSA with the NSA IG over the case and what to me is a clear misuse/abuse of (b)(3) to censor multiple DoD IG reports on a failed NSA program. However, I also believe that this case—and perhaps others involving P.L. 86-36 in the FOIA context—is something the Committee should examine in detail.
Our second item involves the PCLOB’s decision to allow at least one IC agency to censor in their entirety one or more complete PCLOB reports on EO 12333-related activities. My correspondence to date with the PCLOB on this matter is attached. You might also want to take a look at the PCLOB panel video from the 2019 Cato Surveillance Conference, which started at 3pm:
https://www.cato.org/events/2019-cato-institute-surveillance-conference
Go to time index 47:08 and watch me question Klein about whether PCLOB truly owns its work product. My questions were tied directly to the attached FOIA correspondence. My contention is that the targeted agency/department has no legal authority to withhold the report, and neither does PCLOB as there’s nothing in their authorizing statute allowing them to do so. While Cato has not yet filed a lawsuit in this case, it is under active consideration.
Finally, I also attach a FOIA response I received from FBI today in which they invoke a Glomar response regarding Cato’s request for FBI records on 183 individual private virtual network (VPN) providers—an act that is unprecedented to the best of my knowledge.
I’m available to chat further via phone or Zoom about these issues at a day and time mutually convenient to the Committee and myself.
On behalf of Cato, my thanks for your time and attention to this request.
Sincerely,
Patrick G. Eddington
Research Fellow
Cato Institute
5106 Southampton Drive
Annandale, VA 22003
peddington@cato.org
571-215-3468 (cell)
https://www.cato.org/people/patrick-g-eddington
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