The State Department says it has found 194,000 records that may relate to the unexplained acoustic incidents in Havana, but cannot process the documents any faster than 300 pages per month.
At that rate, it will take nearly 54 years to release all the records.
New Yorker magazine and the James Madison Project, a Washington, D.C., group that promotes government accountability, sued the State Department for the documents in February.
In May, the State Department said it had found 135,000 records related to the acoustic incidents. Officials said they could process 300 pages of documents per month, meaning it would take more than 37 years to release the whole batch.
The case plodded along until Mark S. Zaid, the lawyer for the James Madison Project, discovered that the State Department was processing 5,000 pages per month in a separate case involving the State Department and the CIA.
U.S. District Court Judge Amy Berman Jackson ordered the State Department to explain why it was processing the Cuba records at only 300 pages per month.
On Aug. 19, the State Department replied, saying it was processing records at 5,000 pages per month in the case of the October 2018 murder of Washington Post columnist Jamal Khashoggi because the Southern District of New York considered it “a matter of exceptional public importance and obvious and unusual time-sensitivity.”
In December, the Open Society Justice Initiative had sued the CIA and other federal agencies for records related to Khashoggi’s disappearance. On May 30, U.S. District Court Judge Paul A. Engelmayer ordered the State Department to process the Khashoggi records at 5,000 pages per month starting in June 2019.
The State Department asked the judge to reconsider his request, but he denied the motion in an Aug. 6 order.
The New Yorker and the James Madison Project are seeking a copy of the State Department’s Accountability Review Board report on the acoustic incidents, along with “records related to the implementation of the recommendations of the ARB Report.” See Lawyer: U.S. should disclose secrets about “acoustic attacks.”
The State Department sent the classified ARB report to Congress on Aug. 30, 2018, but did not release it publicly. The Government Accountability Office criticized the State Department for poor communication. See “Reported Injuries to U.S. Personnel in Cuba: State Should Revise Policies to Ensure Appropriate Internal Communication of Relevant Incidents.”
Stein said the department did an initial search for records and released four batches of documents to the plaintiffs.
As part of the ARB, officials interviewed 116 individuals and traveled to Cuba. Their goal was to find out “the extent to which the medical conditions were security related, whether the security systems and security procedures were adequate, and whether the security systems and procedures were properly implemented,” Principal Deputy Assistant Secretary of State Kenneth Merten testified in September 2018. See background report on acoustic incidents.
Stein said the department was still negotiating with the plaintiffs over the scope of the records request. He estimated that the department may have 194,000 potentially relevant documents, although that amount could be cut to 185,000 if the magazine agreed to narrow its request slightly.
At 300 pages per month, it would take the department 51 years to process 185,000 documents.
The Department regrets that it cannot commit to processing documents in response to Plaintiff’s request at a faster rate.
In the Khashoggi case, the State Department’s estimate of the number of responsive records jumped from 63,000 initially to more than 288,000.
In the Cuba case, the number rose from 135,000 to 194,000.
Stein acknowledged that the department needs to improve its ability to do targeted searches for documents. He said:
…the Department may identify hundreds of thousands of potentially responsive records using specific search terms,” but “only a small percentage” may be relevant “because some term (e.g. the name of a country) produce a high rate of non-responsive results. The Department is exploring techniques to better target searches, reducing the amount of non-responsive material retrieved.
The State Department uses a document review system called FREEDOMS 2. In October, the department plans to unveil a more efficient system called FOIAXpress.
Stein said reviewing documents is time-consuming because they must be examined for classified or other sensitive information, including:
- “Personally identifiable information about individuals who could suffer reprisals if their identities or opinions are revealed”
- “Confidential information about law enforcement sources, confidential commercial and financial information obtained from private parties”
- Information about “candid deliberations about proposed U.S. foreign relations policies and activities.”
Stein said his office is also dealing with a growing workload. The number of FOIA requests rose from less than 6,000 in fiscal year 2008 to nearly 28,000 in fiscal 2016.
He said 2016 was especially busy because his office had to process some 30,000 emails from former Secretary Hillary Clinton.
That helped push the number of backlogged FOIA cases to 22,600 in 2016, from 11,000 in 2014.
The backlog in 2018 has since dropped to 10,400, but Stein said the Khashoggi case and other FOIA lawsuits threatens to push it higher.
“Non-litigation FOIA is suffering as a result,” he said. Litigation demands “comes at the expense of all other requesters seeking information from the government.” See Stein document for list of FOIA lawsuits against the State Department.
Stein said five full-time FOIA employees alone are processing Khashoggi documents.
“Even at that rate, the Department anticipates that it will take five years to process the material,” he said. “The court order is therefore the most demanding the Department has faced in recent memory, including the court orders to process Secretary Clinton’s emails in the lead-up to the 2016 Presidential election.”
Funding for the department’s FOIA efforts hit $35.9 million in 2018, up from $13 million in 2013.
In 2018, the department also received $28 million to improve record-keeping technology.
I think one way to ease the FOIA crunch would be to boost transparency, putting more information online and making it easy to find.
A few quick takeaways:
- State Department personnel who process FOIA requests have legitimate workload and staffing challenges.
- The department can process specific requests more quickly if officials want to do that – or if a judge orders them to do so – but slows down processing elsewhere.
- The department’s search tools lack precision.
- The FOIA process is seriously flawed and breaks down in cases when the processing times for requests exceeds a half century.