* new NAS response asserts that “much” of the FBI material it has received is exempt from FOIA disclosure, but fails to cite specific legal authority for such exemption; is this a wilful breach of NAS’s responsibility under FOIA?

* buy CASE CLOSED at amazon *

NOTE: for prior correspondence between NAS and LMW on this topic, see related post …  * the NAS has sequestered FBI submitted documents and will not make these available until the end of the study, over a year hence … the legal rationale for this sequestering is now expected next week.

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Update 9/11/09 …

email from LMW to NAS …

BILL …  I’m forwarding to you excerpts from a comment received on the CASE CLOSED blog after posting your response earlier today. I hope you will respond to the issues raised in that comment as well the underlying issue of whatever legal authority you are claiming to withhold FBI material …  LEW

Excerpts from comment by DXer …

• Lew, start with an easy one.  Have him put a copy of the contract in the Public Access File or quote language that the FBI included that prevented its release and the release of those documents not exempt under FOIA.
• 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 wilful breach.
• Why is the Public Relations person giving NAS’ legal opinion rather than the General Counsel?
• Charging for the 100 pages also is inconsistent with FOIA.

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Update 9/10/09 … email from LMW to NAS …

BILL

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You say that much of the FBI material is exempt from release under the FOIA law, but you do not cite the specific legal authority under which such exemptions are claimed.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?

I’m sure you agree that release of “thousands of pages” of  FBI materials at the end of your study is very different from release of these materials as they become available during the course of the study. There are many people who wish to assist in the analysis of the FBI material, and who can provide the kind of help I believe NAS has stated it wants from the public.

You can facilitate that assistance by releasing material promptly; you will surely inhibit such assistance by holding it all until the end, when it will be too late to be meaningful.

LEW

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Update … email from NAS to LMW (9/10/09) …

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.