Freedom of Information Act Request Languishes 16 Months as DIA Officials Shirk Federal Law

Recently, officials at the National Security Agency released documents detailing the agency’s repeated violations of its own privacy guidelines. Meanwhile, officials at another spy agency under the purview of Director of National Intelligence James R. Clapper Jr. have stonewalled me for 17 months, refusing to release copies of unclassified polygraph contract-related documents I’ve been seeking via the Freedom of Information Act.

DIA SealIn the FOIA request submitted to officials at the Defense Intelligence Agency July 16, 2012, I was seeking copies of unclassified documents described in the paragraph below:

“…copies of any and all initial and follow-up contracts (i.e., solicitations, contracts, statements of work and task orders) related to the Portable Credibility Assessment Screening System (PCASS) or Preliminary Credibility Assessment Screening System (PCASS) that have been awarded by any Department of Defense Agency to Lafayette Instrument Company of Lafayette, Indiana, and any other contractors, academic institutions, laboratories and subcontractors from January 1, 2000, to present.”

As I lamented in a piece Oct. 9, 2013, my FOIA request has languished and yielded only one less-than-satisfactory initial response from DIA that came in the form of a letter which, coincidentally or not, was dated May 2, 2013 — the release date of my second nonfiction book, THE CLAPPER MEMO, which takes a critical look at PCASS (a.k.a., “portable polygraph”) and was the reason for my interest in the information. Still, I didn’t give up.

The Clapper Memo Front CoverI picked up the FOIA “ball” again Oct. 22, 2013, and opted for a different approach, contacting James Hogan, director of the Defense Freedom of Information Policy Office in Washington, D.C. After I shared chronological details of my DIA FOIA adventure with him, he informed me he could not provide direct assistance. In the same breath, however, he told me he forwarded my concerns to the DIA FOIA Office and assured me, “The DIA FOIA Office will contact you shortly to provide you with information concerning the status of your appeal.” He also suggested I contact the Office of Government Information Services which, he explained via email, “has among its statutory duties resolving FOIA disputes between requesters and agencies.”

I requested assistance from OGIS Oct. 24, 2013. The following day, they officially stamped my electronic request as “received” Oct. 25, 2013.

Also on Oct. 25, 2013, I received a message from Brentin V. Evitt, a man with a lengthy title (i.e., Deputy General Counsel for Mission Services, Office of the General Counsel, Defense Intelligence Agency) who wrote, “I am looking into the FOIA request and appeal that you have submitted to DIA. I will be back in touch with you as soon as I know more information.”

On Oct. 31, 2013, I informed Evitt that six days had passed and asked him to “provide me an estimate as to when I should expect an update and actual fulfillment of my FOIA request.”

“The OGIS Staff” acknowledged via email Nov. 1, 2013, that they had received my request.

I learned OGIS facilitator Kirsten Mitchell had been assigned to work on my FOIA request Nov. 6, 2013, and, per her request, shared documentation of my FOIA adventure to date. I also learned a few things about OGIS, a subordinate agency of the National Archives and Records Administration, that make me think some government downsizing might be in order:

• OGIS advocates for neither the requester nor the agency, but for the FOIA process to work as intended;

• OGIS provides mediation services to help resolve disputes between FOIA requesters and Federal agencies;

• OGIS strives to work in conjunction with the existing request and appeal process; and

• OGIS may become involved at any point in the FOIA administrative process.

In addition, I learned OGIS really has no authority:

• OGIS cannot compel agencies to release documents;

• OGIS does not enforce FOIA;

• OGIS does not process requests or review appeals;

• OGIS does not provide assistance outside the realm of FOIA; and

• OGIS does not make determinations or dictate resolutions to disputes.

Evitt informed me Nov. 8, 2013, that he had been “unable to locate an administrative appeal from you within our FOIA request/appeals system. I certainly see your initial request and our response, but I can’t find an appeal” and asked me if it would be okay if he treated my latest inquiry as an appeal?

“Am I surprised you are playing this ‘We didn’t receive your appeal’ game? Hardly.” I replied a short time later. “Fortunately, however, I keep good records.”

I went on to explain that I had copied him on my correspondence with OGIS that included all of the necessary details, including the documents he was “unable to locate.”

Where does my FOIA request stand today? Almost three weeks have passed since OGIS facilitator Mitchell entered the picture, and almost four weeks have passed since DIA lawyer Evitt entered the picture. Regardless, my quest continues.

Why are DIA officials thwarting federal law and refusing to fulfill my FOIA request? Because, I suspect, they know they’ll be in trouble if details about the unclassified information I seek are made public.

To learn more, ORDER A COPY of THE CLAPPER MEMO. It comes highly recommended and would make a great Christmas gift.

CORRECTION:  The date shown in the second paragraph of this piece was entered inaccurately and has been corrected.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Bob McCarty is the author of Three Days In August and THE CLAPPER MEMO. To learn more about either book or to place an order, click on the graphic above.

Leave a Reply