A report on the security of TSA operational IT and communications systems released last month by the DHS Office of the Inspector General (OIG) is prefaced with a scathing critique of the redactions demanded by the TSA in the censored public version of the report.

The OIG report found a pervasive lack of basic security measures and consciousness at TSA airport facilities: doors propped open or with locks taped off, unmonitored entrances, lack of logs of physical access to communication nodes and servers, lack of redundancy, etc.

But the TSA tried to keep the OIG from reporting on even those problems that at already been publicly reported, after TSA review and permission, in earlier OIG reports or other pages of the same report. The real point of the TSA’s censorship is not security but avoidance of public and Congressional debate and oversight.

Here’s what the DHS’s own internal auditor reported:

I must lodge an objection regarding the way that TSA has handled information in the report it considered Sensitive Security Information (SSI). Specifically, we issued the draft report, Summary Report on Audits of Security Controls for TSA Information Technology Systems at Airports, to the Department on September 16, 2016.

[W]e asked for agency comments, including a sensitivity review, within 30 days of receipt of the draft. On October 7, 2016, the Chief of the SSI Program provided the results of its sensitivity review, marking as SSI various passages in the report. The redactions are unjustifiable and redact information that had been publicly disclosed in previous Office of Inspector General (OIG) reports. I am challenging TSA’s proposed redactions to our summary report….

I can only conclude that TSA is abusing its stewardship of the SSI program. None of these redactions will make us safer and simply highlight the inconsistent and arbitrary nature of decisions that TSA makes regarding SSI information. This episode is more evidence that TSA cannot be trusted to administer the program in a reasonable manner.

This problem is well-documented. In addition to my previous objection to the handling of one of our reports, the House Committee on Oversight and Government Reform in 2014 issued a bipartisan staff report finding that TSA had engaged in a pattern of improperly designating certain information as SSI in order to avoid its public release because of agency embarrassment and hostility to Congressional oversight.

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We got a pleasant surprise this week: a phone call from Eric F. Stein, the head of the State Department’s FOIA-processing office.

Mr. Stein’s name and signature appeared on a bizarre letter we received last month, telling us that one of the unanswered Freedom Of Information Act requests we’d been bugging the State Department about for the last five years would be “dismissed” if we didn’t respond immediately to say that we were “still interested” in the records we had requested.  To make it harder to respond, there was no phone number or e-mail address in the letter.

“I want to apologize to you directly for that letter,” Mr. Stein said. “I’m sorry we sent you that letter. It was sent by somebody who had the authority to use my signature, but we should never have sent it to you. I’m still trying to find out why it was sent. Somebody is supposed to look at the file before they send out one of these letters. You laid it out very clearly in your letter, and you’re right: Nobody could have looked at that file, and everything you had done to follow up on your request, and thought that you weren’t interested in a response any more. I’ve just had an all-hands meeting of my department and told my staff not to send out any more ‘still interested’ letters until we can be sure that we are following the procedures we said we would follow.”

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In the latest episode of the FOIA follies, we recently received a bizarre letter letter from the U.S. State Department asking us whether we are “still interested” in receiving a response to one of several of our requests for State Department records that have each gone unanswered for more than five years.

The Department of Homeland Security is the leader in improper denial of FOIA requests and wrongful withholding and redaction of records, and has the largest backlog of unanswered requests. The State Department typically practices a different strategy of denial by delay, and has most of the oldest unanswered requests of any Federal department. A five-year wait for an answer from the State Department to a simple FOIA request is routine, although clearly illegal.

The latest letter we got from the State Department threatens to “close” one of our cases and take no further action on our request — in flagrant violation of the FOIA statute — unless we respond by fax (who still has a fax machine these days?) or snail-mail to confirm our continued interest in having the State Department fulfill its legal obligation to provide us with the records we’ve requested, including those about what happened to our complaints of human rights violations and the supplemental “long form” some passport applicants are asked to fill out, among other issues.

We’ve written back to the State Department (by snail-mail, since their letter included no phone number or email address) to tell them that yes, we really do want them to release the records we asked for five years ago — as they should know, since we already formally appealed their failure to answer our request within the time limit set by the law. (In response, they said they wouldn’t accept any administrative appeal until they answered our original request, making it impossible to challenge an illegal delay without filing a Federal lawsuit.) We’ve been making formal written requests at least annually since then for updates on the status of our requests and when the State Department estimates it will answer. (Each year, they set their estimated response dates back another year.) In the meantime, we made additional FOIA requests to the State Department on other subjects  in 2014 and 2015. We have yet to actually get an answer from the State Department to any of our FOIA requests, regardless of how long ago we made them.

The Freedom Of Information Act does not require periodic expressions of continued interest in receiving late responses. But even though it isn’t required, we have provided repeated, explicit written expressions of continued interest in each of our requests.  It would make no sense to allow a government agency to use the fact that it hasn’t responded to a request for government records within the legal deadline as an excuse never to respond at all.

In response to complaints from numerous advocates for government transparency, both the Department of Justice (OIP) and the FOIA ombudsman’s office (OGIS) of the National Archives and Records Administration have recently issued guidelines for the use of “still interested?” letters, if they are used at all.  In May 2016, OGIS wrote to the State Department urge it to  implement the OGIS recommendations regarding “still interested?” letters to FOIA requesters.

The State Department’s Chief FOIA Officer has claimed, both in her most recent annual report in March 2016 and in her response to OGIS in May 2016, that “we can assure you that DOJ guidance and OGIS recommendations are being thoroughly followed”.  As we discuss in our reply to the State Department , which we have also sent to OGIS, the “still interested?” letter we received makes clear that this isn’t true.

“Freedom of information” means nothing if government agencies can, with impunity, ignore the law. A government agency’s own delay in complying with the law shouldn’t be an excuse never to comply at all.

Congress  is again debating the proposals we wrote about last year to deny firearms licenses or permits to anyone “suspected of supporting” terrorism.

We stand by our earlier analysis and our condemnation of this proposal as (1) another step from sanctions against criminal conduct to pre-crime predictive policing, and (2) an expansion of the collateral consequences of secret, unconstitutional, extra-judicial, administrative blacklisting decisions.

But there seems to be a lot of confusion about what is really being proposed. This diagram shows what is already happening with the “No-Fly” and “No-Gun” lists, and what it would mean to merge them.

The proposed “No-Fly, No Buy” law currently under debate in Congress would add the TSDB as a third source (yellow arrow at center right of flow chart) of entries in “No-Gun” list in NCIC, in addition to Federal and state felony convictions and certain misdemeanor crimes of domestic violence. Everything else on this diagram except the one yellow line already exists and would remain the same.

Click the image above for a larger version, or click here for a full-page PDF of the flow chart with a key to all the acronyms.