New Yorker magazine and a watchdog group sued the State Department in February 2019 for documents related to unexplained acoustic incidents that injured U.S. diplomats in Havana. (See “Documents will be available in the year 2073“).
But the State Department says it has made very little headway in processing FOIA documents over the past nine months due to COVID-19.
The State Department often uses retired Foreign Service Officers, or REAs, to process FOIA requests. They are “an indispensable part of the FOIA litigation process,” according to a State Department document filed in court. But,
At this time, REAs are no longer able to access their offices for two reasons. First, the processing of FOIA cases is not deemed a mission-critical function. Second, since the REAs are retired Foreign Service Officers, many of them are within the age groups identified by the Centers for Disease Control as being at higher risk for serious illness from COVID-19. Consequently, State has paused the scheduling of all REAs working in the department’s offices effective March 19, 2020.
Although REAs are telework-eligible, very few REAs are telework-ready at this time. Furthermore, even if the REAs were telework-ready, they would be unable to advance any work on this case because potentially responsive documents reside in a document review system that is operated exclusively on a classified computer network that cannot be accessed via telework or offsite.
Although State is in the process of transferring cases to a new document review platform, cases that are currently in the original system, like this case, will continue to be processed on a classified network after the transfer.
This litigation is impacted by the measures that State has undertaken to protect the community from COVID-19. As explained above, State cannot proceed with processing and producing documents until FOIA personnel are able to return to work after the COVID-19 pandemic resolves.
New Yorker is seeking the documents with help from the James Madison Project, a Washington, D.C., group that promotes government accountability.
The State Department has said it has found 194,000 records that may relate to the acoustic incidents, but at the rate it is processing the documents it could take decades for all of them to be released.
On Nov. 23, the State Department recommended that the court continue to allow FOIA processing to be suspended during what it described as Phase Two of its pandemic protocol.
Under Phase Two, bureaus are no longer required to maximize telework, but are encouraged to continue maximizing telework and extending telework flexibilities. The Department’s Office of Information Programs and Services (“IPS”) is continuing to assess Department guidance with respect to Phase Two and evaluating the potential increase in onsite FOIA processing resources throughout this phase.
State cannot currently predict when it will be able to enter Phase Three. Further, a regression to an earlier phase remains a possibility due to the shifting nature of the global COVID- 19 pandemic and other considerations relevant to decisions affecting the safety and security of Department personnel and their surrounding communities. IPS will continue to follow Executive Branch and/or Department guidance issued in response to the ongoing public health situation, and the Department will continue to provide updates about its current and anticipated future FOIA processing capacity.
The majority of the Department’s FOIA staff continues to telework. At the time of this filing, approximately 25% of State’s FOIA litigation processing personnel have returned to their Department workstations on a part-time basis. The particular analysts and REAs who have returned onsite have done so of their own volition pursuant to the Department’s reopening guidance. The analysts and REAs who have returned to their Department workstations have access to FREEDOMS 2 and the classified network while in the office. As of this date, the primary FOIA litigation processing personnel assigned to this case have not returned onsite, and so there has been no change to the Department’s ability to process this case.
For more information, see statement by Eric Stein, director of the State Department’s Office of Information Programs and Services.