* It’s well past time for the NAS to be frank and honest about what it has agreed with the FBI regarding the sequestering of FBI-submitted documents in apparent violation of FOIA requirements
Posted by Lew Weinstein on October 3, 2009
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Another week has passed … NAS has still not explained the basis for its decision, together with the FBI, to sequester FBI-submitted documents until the conclusion of its review of the FBI’s anthrax science
These are the currently outstanding questions …
- Does the NAS/FBI agreement specifically prohibit the disclosure of FBI-submitted documents, in whole, in part, now, or later?
- If so, can you provide the language of the agreement that does so?
- What do you claim as your lawful authority to sequester the FBI-provided material until the end of your review?
- Do you understand that you are required to state specific exemptions pursuant to FOIA?
- Are you prepared to have your attorney cite specific FOIA exemption provisions for each document sequestered?
- Are there provisions of the FOIA law which allow the exemptions you cite to apply now but not at the end of the review period?
- How do you characterize FBI-submitted material which you believe is not exempt?
The total correspondence between myself and NAS related to the FBI-submitted documents is reproduced below. Here is a brief summary of that correspondence …
- It begins with a simple request (9/4/09) for access to documents accumulated by NAS and the immediate response from the NAS spokesperson that FBI-submitted documents will not be made available “until the end of the study.”
- When I asked the legal basis for sequestering these documents, I was told that they are exempt from FOIA requirements but, according to the (undisclosed) agreement between NAS and the FBI, they are to be made available at the end of the study.
On 9/11/09, I communicated DXer’s comment to the NAS, as follows … There is nothing in the statute that permits the withholding until after their review is done. To the contrary, it holds the opposite and makes FOIA applicable. If it is producible at the end of their review, it is producible now. Thus, his present position constitutes a willful breach.
- To this assertion, there has been three weeks of silence from NAS. No explanations. No citation of specific FOIA exemptions. No release of the relevant NAS-FBI contract provisions.
In my judgment, this failure to respond is an insult to me and to the American people who are paying $880,000 to fund this NAS study.
If NAS believes it has legal justification under FOIA or under its contract with the FBI to withhold and sequester FBI-submitted documents, then they should put that alleged justification forward. That this might lead to unfavorable analysis and litigation does not excuse the three weeks of silence.
It’s well past time for the NAS to be frank and honest about what it has agreed with the FBI.
Correspondence between Lew and NAS …
9/4/09 … Lew to NAS … Many of us at the CASE CLOSED blog followed the opening hearings of the NAS study panel with great interest. The questions asked by panel members suggested that the study is off on exactly the right foot. There have since been reports of documents received by the NAS panel, which documents are preumably now being reviewed. My question is whether these documents can now be made available, and if so, what is the procedure (FOIA?) for requesting them.
9/4/09 … NAS to Lew … Lew, the NAS is a nonprofit private institution that operates under a congressional charter and the Section 15 of the Federal Advisory Committee Act which requires that material presented to our committees as part of their data gathering go in our Public Access Office files. Some material given to the anthrax committee is already in that file and I’ll ask someone from public access to send you link to list. However, the FBI case documents periodically being given to the committee will not go in the public access file until the end of the study.
9/4/09 … Lew to NAS … I wonder if you could explain what seems on the face of it to be an inconsistency. If material received by the committee is supposed to go into a public access file, why is material from the FBI excluded from that requirement. What is your lawful authority to sequester the FBI-provided material?
9/6/09 … NAS to Lew … I’ve asked our general counsel for the legal language you requested but I don’t know if I’ll have it for you before Tuesday.
9/10/09 … NAS to Lew … Lew, below is my response to how we’re handling material from FBI. Before it is a link to FACA sections applying to NAS and under which we operate, so you can see the language with which we comply. Sorry it took me a few days to get back to you. http://www.nasonline.org/site/PageServer?pagename=ABOUT_FACA The study committee expects to receive thousands of pages of material from the F.B.I. in the course of its study. Some has already been received; more will be coming as the study progresses. Much of this material is exempt from mandatory release to the public under the Freedom of Information Act. However, we have an agreement with the F.B.I. that all of the material will be made available to the public at the same time that our report is released, so that everyone will be able to review the information that was available to the committee in reaching its conclusions.
9/10/09 … Lew to NAS … Thank you for your response, although I must say it seems inadequate. You say that much of the FBI material is exempt from release under the FOIA law, but you do not cite the specific legal authority under which such exemptions are claimed. It is my understanding that there are several reasons for possible exemption from release. Which reasons do you specifically cite for each category of FBI material you claim is exempt? Also … I note that you say “much” of the FBI material is exempt, which means that some is not exempt. Could you please advise which FBI material you believe is not exempt, and how the non-exempt FBI material differs from the FBI material which you say is exempt? Finally, how does one go about requesting the FBI material which you say is not exempt?
9/11/09 … DXer to Lew to NAS … There is nothing in the statute that permits the withholding until after their review is done. To the contrary, it holds the opposite and makes FOIA applicable. If it is producible at the end of their review, it is producible now. Thus, his present position constitutes a willful breach.
9/18/09 … Lew to NAS … I wonder if you could let me know the status of any response to my 9/10/09 email (repeated below). Are you in the process of preparing a response? When can I expect to receive a response?
9/22/09 … Lew to NAS … I can understand if my previous questions have led to a need for legal opinions regarding the FBI-submitted documents, and that this may take a while to complete. My questions are … is NAS in fact seeking or preparing legal opinions? do you have an intent to respond to my previous questions? if so, when would be a reasonable time to expect a response?
9/22/09 … NAS to Lew … Lew, you can call me about these questions.
9/22/09 … I had a telephone conversation with the NAS spokesperson. He was quite cordial but offered no new information, saying only that he would again refer my questions to NAS counsel.
9/24/09 … Lew to NAS … I think you are being as forthcoming as you can be, given that you have little information to share, and I think the conscientious scientists on the NAS panel are being undermined by the decision of NAS bureacrats to accede to the FBI’s rules of conduct. I have waited the two days I said I would; here’s a heads-up on today’s post on the CASE CLOSED blog. http://caseclosedbylewweinstein.wordpress.com/2009/09/24/its-seems-the-fbi-said-the-documents-were-exempt-from-foia-and-nas-with-no-independent-verification-accepted-that-conclusion/ As I told you when we spoke, I think the NAS is taking a very bad route in aligning itself with the FBI’s refusal to tell the American people the basis on which they concluded that Dr. Ivins was the sole perpetrator (or even involved at all) when there is no supporting science, no physical evidence, and no witnesses which point specifically to the man the FBI says is the anthrax killer. In my view, shared by many, it’s been eight years since some as yet unidentified terrorists conducted mass murder on American soil, and we have no credible answers.
9/30/09 … Lew to NAS … Any word from NAS counsel on the claimed FOIA exemption items?