Secrets and How to Keep Them By James Marc Leas

Sometimes defending freedom does not require the use of bombs, rockets, or jet planes. Sometimes defending freedom just requires the Air Force to follow the orders issued by the Secretary of the Air Force and release the non-classified publicly-owned information in its possession. Somehow, when it comes to this kind of freedom, the Air Force is missing in action.

Two orders issued by the Secretary of the Air Force beautifully describe how this agency will defend freedom of information. The orders expressly support the public’s right to full information about our government as a key element of a free society. The orders, if implemented, would protect the public from some of the dangers of a secret government.

However, offering beautiful words and supporting an abstract right to information is not enough. What is also needed is actually providing information when requested.  The Air Force is not doing this. And it has come up with several nefarious schemes to prevent public access to information.

The dangers of secret government include corruption and undue influence by corporations and by the politicians whose election campaigns those corporations finance. Our hard earned tax money, our civil liberties, and our democracy are all at risk from a government that keeps its operations secret from the public. Few things serve the public interest more than an open, honest, and transparent government. One aspect of the danger of secret government – secretly spying on millions of ordinary citizens – was highlighted by whistleblower Edward Snowden.

Ironically, while the US government has been secretly collecting American citizens’ private information, the Air Force is simultaneously using schemes to block public access to non-classified government-held information the publication of which could stymie illegal, immoral, or corrupt practices.

One corrupt practice that has been the subject of FOIA requests is the Air Force decision to base F-35A jets in the most heavily populated region of Vermont. As the Boston Globe reported last April, Pentagon insiders told a reporter that the process was “fudged.” No independent and impartial investigation was implemented in response to this report. Instead, Vermont political figures, including both Senators, the Congressman, the Governor and the Mayor of Burlington all locked step with each other. One of the Senators, Patrick Leahy, the most senior of all Senators in the US Senate, has extraordinary leverage over the Air Force budget, and the Globe article provides insider evidence that Leahy used that leverage to force the Air Force decision on F-35 basing.

The Talk

The two orders related to freedom of information issued by the Secretary of the Air Force beautifully say what ought to be. The order entitled, “Freedom of Information Act Program,” dated 21 October 2010 and updated on 24 April 2012, number DOD5400.7-R_AFMAN 33-302 states:

C1.3.1.1. The public has a right to information concerning the activities of its Government. DoD policy is to conduct its activities in an open manner and provide the public with a maximum amount of accurate and timely information concerning its activities, consistent always with the legitimate public and private interests of the American people. A record requested by a member of the public who follows rules established by proper authority in the Department of Defense shall not be withheld in whole or in part unless the record is exempt from mandatory partial or total disclosure under the FOIA. (Page 11).

The other order issued by the Secretary of the Air Force gets more specific about what the Air Force will do and what it won’t do. Entitled “Public Affairs Responsibilities and Management,” Air Force Instruction 35-101, dated 18 August 2010, states:

Disinformation, activities to misinform, mislead, cover up, or deny otherwise releasable information,will not be practiced in any PA program (Page 7)…DOD makes available timely and accurate information so that the public, Congress, and the media may assess and understand the facts about national security and defense strategy. Requests for information from organizations and private citizens shall be answered in a timely manner. In responding to requests, the following guidelines apply:

1.10.1. Information will be fully and readily available, consistent with statutory and regulatory requirements and exemptions. The provisions of the Freedom of Information Act (FOIA) and the Privacy Act will be supported in both letter and spirit.

1.10.2. A free flow of general and military information will be made available without censorship or propaganda to the American public and to the men and women of the armed forces and their family members.

1.10.3. Information is not classified or otherwise withheld from disclosure only to protect the government from criticism or embarrassment. (Page 9).

The Action

In response to several Freedom of Information Act (FOIA) requests that I submitted, the Air Force implemented four schemes to violate the explicit orders from the Secretary of the Air Force. All of these schemes risk hiding potential corruption. All subordinate citizen rights. All put freedom and democracy at risk.

Say no to freedom step 1: Aggregate 

Aggregate several completely different and unrelated FOIA requests. Certainly, aggregating related requests makes sense. But aggregating unrelated requests expressly violates the “Freedom of Information Act Program” order issued by the Secretary of the Air Force which states: “Multiple requests involving unrelated matters shall not be aggregated” (page 62). “In no case may Components aggregate multiple requests on unrelated subjects from one requester.” (page 80). We shall see in the steps below how aggregating the unrelated requests is a key tactic toward thwarting release of information.

Say no to freedom step 2: Oops, now its complex

After aggregating the completely different and unrelated multiple requests, assert that the request is now “complex.” Put the aggregated request in the “complex” track and send a letter to the requester saying the items in the now complex request will be in the queue for many months.

Say no to freedom step 3: Impose a giant fee

Wrongly assert that the requester is a commercial entity and assign a huge fee for searching items in this now “complex” request: in this case, a fee of $741,000 for searching one item. After assigning the $741,000 fee for searching one item in the now “complex” request, assign an additional huge fee – this one $855,894 – for searching another item in the “complex” request:

This letter [dated 19 December 2013] is to notify you of an additional search cost estimate in response to FOIA request 2014-00901-F, item 1(d) concerning “communications to and from Lt Col Jim “Juice” Bowen regarding the F-35A strategic basing process for 2012-2013″. The cost estimate for searching for records responsive to this request is $855,894.00 and is based on the number of hours required to search for records. This is our initial estimate for item 1(d) in attached request outline—actual costs may be lower but could also be higher. This is in addition to and separate from the cost estimate in my 16 Dec 2013 letter which only applied to item 1(b) of attached request outline.

A careful consumer might reasonably question the $855,894.00 cost estimate for searching for the communications to and from Lt Col Jim “Juice” Bowen. Would not all his electronic communications be found on his own computer, in his email account, or on the portion of the network assigned to him?

4.  Say no to freedom step 4: Use aggregating to avoid responding to the simple requests

Omit mention of the simple requests that were aggregated in with others, and don’t respond to the simple requests.

The obstacles presented by the Air Force, including aggregating, huge fees, and non-response to simple requests, each contradict the specific orders issued by the Secretary of the Air Force. In view of the concerted Air Force efforts to violate the clear, specific, and direct orders from the Secretary in order to block release of information, one may wonder whether the Air Force and its friends in high places have something they really want to hide.

The Secretary of the Air Force had it right when he said, “The public has a right to information concerning the activities of its Government.” The public has a right to demand an end to Air Force stonewalling and to demand an immediate release of the requested information. An end to the stonewalling. An end to the cover up. Intense public pressure is needed to pry loose the truth.

James Marc Leas is a patent attorney in Vermont.

Previously published here

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