Hi, Privacy and FOI Activists,
The Privacy Shield agreement allows data transfers from the EU and
Switzerland to the US. There are currently two court cases at the EU
Court of Justice challenging the agreement. Privacy Shield may be
illegal under EU law, because the agreement still allows NSA mass
surveillance.
Back in mid-April 2017, I sent a formal request to the US government to
declassify PPD-28 (Presidential Policy Directive-28), which was signed
by former US President, Obama. The US government has refused to confirm
the receipt of the declassification request and has refused to say
whether the request is being processed. The full PPD-28 (including its
classified annex) is part of the Privacy Shield agreement by reference.
The US government is claiming (...lying...) that the PPD-28 limits NSA
mass surveillance, even though part of this PPD-28 document is still
classified.
The US government is refusing to accept declassification requests for
Obama's records (including PPD-28) until January 20, 2022. This action
by the US government may be illegal, but it would be difficult to fight
the US government in court on this issue.
I may have run out of options to appeal the US government's actions in
the US. I would like to know if there are any government agencies,
political parties, private organizations, or individuals in the EU and
Switzerland who I can contact and complain about the US government's
behavior. If you have any suggestions or recommendations, please email
me at ractack@mail.com
I am also looking for volunteers to file public records requests in the
EU and Switzerland for Privacy Shield documents. If you are interested,
also email ractack@mail.com
Regards,
Rachael Tackett
Attached below is a discussion from another listserv about the legal
difficulties of trying to get PPD-28 declassified.
On 06/29/2017 04:34 PM, Kel McClanahan, Esq. wrote:
Related to Patrice's observation that the OPL doesn't actually exist
yet, that's actually the reason they apply the delay to MDR requests,
saying that they need the 6 years to get everything sorted and
catalogued and figure out what they're going to do with the info. So
it's not just them saying "not gonna do it" and sitting around; they
have a legitimate logistics argument to support it. NARA IG isn't
going to do anything because they're not actually breaking any rules,
and Congress, well, Congress is a bit of a wild card when it comes to
transparency, especially lately. Ask for reform and you might get it,
and it might be worse than it already is.
Honestly, if you want to make a case about this to Congress/IG/etc.,
you're best off waiting a little while to remove their ability to say
"we're still building it and hiring people and couldn't possibly do
anything." Put another way, while you might find a sympathetic ear in
a couple years, you're definitely not going to find one now, and
drawing attention to this now when their argument is strongest may
hurt your ability to make it later when circumstances are more
favorable to you. That's just my personal opinion, though, and others
may disagree.
On 6/29/2017 4:24 PM, Rachael wrote:
Yes, I see necessity to prevent creating bad case law. What are the
options to put pressure on NARA besides the courts?
Complaint to NARA OIG and then OIG council? Complaining to members of
Congress and get a GAO investigation? Any other options?
On 06/29/2017 04:21 PM, Kel McClanahan, Esq. wrote:
Presidential records are exempt from disclosure until 6 years after
the end of the President's term, which would be 1/20/23. It's in
the PRA, as interpreted by ISOO. I had this argument with the Bush
Library a while back. Now, could you sue them under the APA for
applying the statutory embargo for FOIA and PRA to MDR requests?
Maybe, but it'd be a hell of a fight and would probably create some
horrible case law, so unless you desperately need some Presidential
record urgently and damn the consequences for the rest of the
requester community, I'd advise against it.
On 6/29/2017 4:13 PM, Rachael wrote:
RE Ken McClanahan, Esq. - is there a link where OPL (Obama
Presidential Library) states that it doesn't have to accept MDR
requests until 1/20/23 and what their legal reasoning may be?
EO 13526 (the executive order governing the MDR process) states,
"...However, the Archivist shall have the authority to review,
downgrade, and declassify papers or records of former President and
Vice Presidents under the control of the Archivist pursuant to 44
U.S.C 2107, 2111, 2111 note, or 2203..." Section 2203 actually
obligates the Archivist to process and publicly release
presidential records as rapidly as is legally possible.
Under the PRA (Presidential Records Act), the former president can
restrict access to certain records for up to 12 years (44 USC 2204
a). If the restricted access category no longer applies (for
example if a record is declassified), then there may be no excuse
to withhold the record (44 US 2204 (b)(1)(A)(ii)).
I just don't understand how the OPL believes it doesn't have to
accept MDR requests nor comply with the PRA.
Please correct me if I am wrong on any of this.
On 06/29/2017 03:21 PM, Kel McClanahan, Esq. wrote:
The OPL does not have to accept MDR requests until 1/20/23, and I
am not surprised they did not acknowledge yours.
On 6/29/2017 2:47 PM, Patrice McDermott wrote:
The OPL, as such, does not yet exist. You should check with Presidential Records at NARA.
Patrice
-----Original Message-----
From: State and Local Freedom of Information Issues [mailto:FOI-L@LISTSERV.SYR.EDU] On Behalf Of Rachael
Sent: Thursday, June 29, 2017 2:42 PM
To:FOI-L@LISTSERV.SYR.EDU
Subject: Help, What if agency doesn't confirm receipt of MDR request?
Dear FOI Listserve,
Firstly, the Obama Presidential Library refused to provide me with an email address to send an MDR request to (which violates US regulations).
I sent an MDR request to the Obama Presidential Library's general email address back in April 2017. I sent a follow up email about a week later asking for confirmation of receipt. So far, I have not gotten any response.
Since the Obama Presidential Library refuses to acknowledge receipt of my MDR request, can I interpret this as a denial to process my MDR request and start the appeals process? Or do I have to wait the full year before I can start the appeals process?
Any citation of the US statutes or CFR would be very helpful.
Thank you,
Rachael Tackett, currently frustrated MDR requester :(
---
This electronic mail (email) transmission is meant solely for the
person(s) to whom it is addressed. It contains confidential
information that may also be legally privileged. Any copying,
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anyone other than the addressee or his or her agent for such
purposes is strictly prohibited. If you have received this email
in error, please notify me immediately by telephone or email and
purge the original and all copies thereof. Thank you.
Kel McClanahan, Esq.
Executive Director
National Security Counselors
"As a general rule, the most successful man in life is the man who
has the best information."
Benjamin Disraeli, 1880
"Quis custodiet ipsos custodes?" ("Who will watch the watchers?")
Juvenal, Satire VI
---
This electronic mail (email) transmission is meant solely for the
person(s) to whom it is addressed. It contains confidential
information that may also be legally privileged. Any copying,
dissemination or distribution of the contents of this email by
anyone other than the addressee or his or her agent for such
purposes is strictly prohibited. If you have received this email in
error, please notify me immediately by telephone or email and purge
the original and all copies thereof. Thank you.
Kel McClanahan, Esq.
Executive Director
National Security Counselors
"As a general rule, the most successful man in life is the man who
has the best information."
Benjamin Disraeli, 1880
"Quis custodiet ipsos custodes?" ("Who will watch the watchers?")
Juvenal, Satire VI
---
This electronic mail (email) transmission is meant solely for the
person(s) to whom it is addressed. It contains confidential
information that may also be legally privileged. Any copying,
dissemination or distribution of the contents of this email by anyone
other than the addressee or his or her agent for such purposes is
strictly prohibited. If you have received this email in error, please
notify me immediately by telephone or email and purge the original and
all copies thereof. Thank you.
Kel McClanahan, Esq.
Executive Director
National Security Counselors
"As a general rule, the most successful man in life is the man who has
the best information."
Benjamin Disraeli, 1880
"Quis custodiet ipsos custodes?" ("Who will watch the watchers?")
Juvenal, Satire VI
grarpamp
Rachael