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Edward Hasbrouck v. National Archives and Records Administration (NARA)

Federal Records Act (FRA) and Freedom Of Information Act (FOIA) lawsuit for preservation and disclosure of records of the National Commisson on Military, National, and Public Service (NCMNPS)

Civil Action No. 1:21-cv-00444, U.S. District Court for the District of Columbia (filed 21 February 2021; assigned to U.S. District Judge Dabney L. Friedrich)

On 21 February 2021 I filed a complaint against the National Archives and Records Administration (NARA) in the U.S. District Court for the District of Columbia for violations by NARA of the Federal Records Act (FRA) and the Freedom Of Information Act (FOIA).

For more about my decision to file this lawsuit, see my blog post, Why I’m suing the National Archives (22 February 2021).

This lawsuit releates to records which were created by the National Commission on Military, National, and Public Service (NCMNPS), which operated from 2017-2020.

The records of the NCMNPS were transferred to NARA when the NCMNPS was disbanded in September 2020. I requested these records first from the NCMNPS, while it was still in operation, and again from NARA after NARA took custody and control of the records from the NCMNPS. But neither the NCMNPS nor NARA responded to many of my requests, and NARA threatened to destroy the records I had requested unless I sued to force NARA to retain and release these records. So I sued.

My lawsuit seeks a “declaratory judgement” (1) that it would violate the Federal Records Act (FRA) for NARA to destroy these records while my Freedom of Information Act (FOIA) requests for them are pending, and (2) that it would violate the FOIA law for NARA to withhold these records from public disclosure.

A FOIA case of first impression

This case raises important issues about the policies and procedures of the National Archives with respect to preservation of, and access to, records of “temporary” Federal agencies. The General Counsel for NARA has confirmed that, as far as either NARA or the Department of Justice can tell, this is what lawyers call a “case of first impression” (i.e. potentially prcedent-setting) with respect to (1) processing of FOIA requests pending when a temporay Federal agency shuts down, and (2) retention after a temporary agency shuts doen of records potentially responsive to pending FOIA requests and appeals.

Processing FOIA request takes time. A Federal agency almost always has a queue of FOIA requests that have been receievd but n ot yet answered. Most Federal agencies have FOIA backlogs of requests to which responses are overdue. And there a variety of reasons why journalists, researchers members of the public interested in the activities of a temporary agency would deliberately submit FOIA requests near the end of the agency’s existence, to obtain those records for the full duration of the agency’s existence.

So you would thnk that it would be *expected* that a temporary agency would have FOIA requests and appeals pending when its mandate expires, that this would be anticipated and provided for in the FOIA regulations of a temporary agency, and that NARA (which typically receives the records of temporary agencies when they shut down) would have guidelines and procedures for temporary agency FOIA regulations and processing of requests for records fo former temprarty agencies.

But neither NARA nor the Department of Justice, each of which prmulgates FOIA guidance for other agencies, are aware of any temporary agency ever having admitted to having any FOIA requests or administrative appeals pending backlog when it expired. I assume this means that the de facto standar procedure is for the last FOIA officer to summarily deny everything in the backlog on their way out the door as the agency shuts down.

In this case, the NCMNPS arbitrarily and illegally set a cutoff date after which it refused to accpt any FOIA requests, even though it was still in operation (and busy purging its files), effectively claiming the right to carry out the shutdown and transition phase of its operations in a FOIA-free zone. Worse, NARA claims that, although it now has possession and/or control of all the records left behind by the NCMNPS, those records are in some sort of FOIA black hole in which neither NARA nor any other agency is required to respond to FOIA requests for them, and NARA’s only duty is to keep the recrods secret from the public until they can be destroyed.

Why these records are important

Records of a defunct temporary agency might seem to be of little importance. But in this case — as in some others — the temporary agency in question was established not for an operational purpose but to conduct research (most of which remains secret) and make recommendations (the conclusions of which have been revealed, but little of the basis for which has been disclosed) to inform and guide Congress, the courts, and the public in making subsequent decisions on an important and controversial issue: the future of contingency planning and preparation for military conscription or other compulsory national service in the U.S., especially whether the requirment to register with the Selective Service System for a possible military draft should be expanded to apply to young women as well as young men.

The product of the $45 million dollars in Federal tax money spent on the work of the NCMNPS over the three years of its operation (by comparison, the Selective Service System, which the NCMNPS was reviewing, had a budget of $75 million over the same 3-year period) was its research and recommendations.

The question now is whether Congress, the courts, and the public will be able to read the research and reports prepared by or for the NCMNPS, review the basis for its recommendations, and decide for themselves whether to adopt the policies recommended by the NCMNPS, or whether the NCMNPS will be allowed to get away with creating a selective and stage-managed record of its work that makes it impossible to second-guess its decisions, and leads to its recommendations being accepted as conclusionary (and presumptively well-founded, although they aren’t).

Can a temporary agency, especially a “study commission”, make its own selective record and create its own history, expunging whatever evidence might discredit it or call its conclusions into questions? Or should the full record of the research it conducted or commissioned, the evidence it considered, and its deliberations be preserved and open to public scrutiny? What role should the National Archives play in this process? Should the National Archives allow the ghost of an agency whose legal mandate for existence has expired to reach out from the grave ands rewtite history through selecting which records of its work are preserved and which are expunged? Can Congress, by “deferring” to the “expertise” of a group that met and deliberated behind closed doors, evade responsibility for a controversial decision?

One of the most important questions about the NCMNPS, which these records and others I have requested may help to answer, is whether the NCMNPS saw its mission as conducting independent research and putting forward its own recommendations, or as providing political cover to Congress by constructing stage-managed record supporting policies and legislative recommendations predetermined by the politicians who had appointed individual members of the NCMNPS.

This case is about government records. It’s also about the nature of government decision-making in a country that calls itself a democracy.

There’s another important lesson to be learned from this lawsuit aboout the substance and the subject of these records: the current debate on the fuuter of the military draft and, more specifically, the debate about the legislative recommendations made by the NCMNPS in 2020 and under consideration in Congress in 2021.

The NCMNPS did everything in its power — even going beyond what the law allowed — to withhold from public scrutiny the minutes of its deliberations (some of which have since been disclosed by NARA), the basis for its recommendations (we still don’t know on what, if any, evidence the NCMNPS relied), its research (almost none of which has yet been released by either the NCMNPS or NARA), or the public input it receievd (only selected portions of which have been released).

As I said in my appeal of the denial of expedited processing of one of my FOIA requests for Commission records:

The NCMNPS was created by a provision of the National Defense Authorization Act (NDAA) for Fiscal Year 2017 that was included in neither the House nor Senate version of that bill, but was inserted behind closed doors by the House-Senate conference committee. There is no public record, aside from the statute itself, of why Congress and the President created the NCMNPS, or what they intended to NCMNPS to do. But the members of the NCMNPS, each of whom was appointed by a specific Congressional leader or by the President, presumably were given instructions by those who appointed them as to what they were supposed to do.

The House and Senate versions of the FY 2017 NDAA differed in whether they included a provision amending the MSSA [Military Selective Service Act] to expand Presidential authority to order registration with the Selective Service System, and criminal penalties for nonregistration or failure to report address changes, to women as well as men. The NCMNPS was created to address that issue.

The draft has been, of course, one of the most controversial issues in U.S. history, whenever it has been used. The last time registrants were called up for inductions, millions violated the MSSA. Tens of thousands were driven into emigration or exile. Thousands were imprisoned. Opposition to the draft influenced Congressional and Presidential elections.

Compliance with the MSSA is lower today than ever, in significant part because criminal enforcement was abandoned in failure by the DOJ in 1988 and has never resumed. It’s reasonable to assume that any attempt to expand Selective Service registration to women would prompt more resistance and more controversy.

The NCMNPS wanted us to believe that its purpose was to conduct an impartial inquiry and make recommendations informed by research and public consultation. They tried hard to create a record of their activities that would support that interpretation.

But an interpretation that is at least equally likely… is that the NCMNPS was created by Congress and the President to provide them with “political cover” and an excuse for enacting new legislation with minimal or no Congressional hearings or debate, relying on the “informed and expert” recommendations of the NCMNPS, and that the members of the NCMNPS were partisan political appointees selected for their ability and willingness to advocate for, and to construct a record that would support, policy recommendations consistent with the outcomes already sought by those who appointed them.

The members of the NCMNPS did their job. But did they see that job as open-minded inquiry, or as the construction of a pretext for Congressional and Presidential action?

We know that some major areas of inquiry were ignored by the NCMNPS. In particular, the NCMNPS and its staff never talked to the Department of Justice about how the DOJ would try to enforce an expanded Selective Service registration requirement, what that would cost, or how effective that enforcement plan might be. So far as we can tell from the records relased to date, the NCMNPS research staff was never tasked with preparing, nor did it prepare on its own initiaitve, any assessement of current or likely compliance and noncompliance with draft registration, or of enforcement possibilities, plans, costs, or likely effectiveness.

We know that Congress needs to assess these issues that the NCMNPS ignored. But even in the areas where some research may have been conducted, we still don’t know whether or to what degree the recommendations of the NCMNPS were supported — or contradicted — by evidence, research, or public comments.

I’ve brought this lawsuit to try to obtain the information needed to assess the credibility and appropriate weight, if any. that should be given to the NCMNPS report. But Congress is lilkely to be making decsions on these issues before this lawsuit is resolved. In the meantime, the deliberate decision of the NCMNPS to withhold any information that might allow an impartial assessment of the evidence for and against its recommendations means that they should be given little if any deference.

This lawsuit and the reasons it was necessary should be an indication of the need for Congress not to rely on conclusionary recommendations of the NCMNPS, but to conduct its own full and fair hearings, particularly on the issues of compliance and enforcement that we know the NCMNPS ignored.

I am pleased and honored to be represented in this lawsuit, pro bono, by Kel McClanahan, Esq., Executive Director, Brendan Stautberg, NSC intern, and their associates at National Security Counselors, a nonprofit law firm that specializes in government transparency and national security issues and often represents journalists, academic researchers, and whistleblowers in FOIA and public-records litigation related to military and national security policies and agencies. If you’d like to help make it possible for them to offer pro bono services to journalists, researchers, and whistleblowers in cases like this, you can make a tax-deductible donation here. Mr. McClanahan is a FOIA expert, has made FOIA requests in his own behalf and been involved in FOIA litigation against NARA before, and — somewhat ironically in this case — currently serves as one of the members appointed by the head of NARA, the Archivist of the U.S., to NARA’s FOIA Advisory Committee.

Suing the National Archives?

I don’t want to sue the National Archives. But NARA refused to respond to my FOIA requests, and threatened to destroy the records I had requested. I filed this lawsuit only as a last resort, when NARA refused to negotiate or even provide any formal notice of its denial of my FOIA requests, but instead insisted on ignoring my FOIA requests and threatening the imminent destruction of most of the records of the NCMNPS, to make sure that they would never become public.

I sued NARA because NARA is trying to keep records of Federal government research and decision-making hidden until they can be dsstroyed, instead of doing its job of preserving public-domain Federal government records and making them available to inform public and Congressional debate.

What is NARA trying to hide? I don’t know. Maybe NARA just doesn’t want to add a few more requests to its FOIA backlog, but that semes an inadequate explanation.

Perhaps NARA hoped and assumed that, like most FOIA requesters, I wouldn’t be able to afford to sue. I’m extremely fortunate that my attorney agreed to take this case pro bono, so that I only have to pay out-of-pocket expenses and filing fees, although tha’s still not cheap. Maybe NARA thought that I would go away if they ignored me for long enough, and then told me that all of the records I wanted had been irrevocably expunged. If that’s what they think, they don’t know me. I can be firm, but I can also be patient. The military draft and draft registration have been central to my interests and activism for more than 40 years, and I’m not about to give up and walk away from the issue now, while it is under active debate both in Congress and in the Supreme Court for the first time in decades.

Background to this lawsuit

The National Commission on Military, National, and Public Service (NCMNPS) was a temporary, special purpose Federal agency which operated from 2017-2020. All of the records of the former NCMNPS were transferred to NARA after the NCMNPS was disbanded in September 2020.

I made a series of FOIA requests to the NCMNPS during its existence. The NCMNPS dragged its feet, and released only a small fraction of the records I requested. Newly-created files containing only a portion of the information in NCMNPS records were substituted for many of the original files. Many other records and portions of records were improperly withheld, mnay in their entirety, often without explanation.

The NCMNPS ceased to exist as a Federal agency on 18 September 2020, when its statutory mandate expired, and legal custody and control of all of its remaining records (i.e. those it had not already managed to delete or destroy, legally or illegally) was transferred to the National Archives and Records Administration (NARA).

NARA refused to do anything with the requests and appeals that I submitted to the NCMNPS (one of which the NCMNPS received but had taken no action on before its dissolution, and others of which had been only partially processed) before the NCMNPS was dissolved and its records were transferred to NARA.

The NCMNPS was, of course, not the first temporary Federal agency to expire and pass on its records to NARA. Most Federal agencies, most of the time, have a backlog of pending FOIA requests, so one would expect that the records of a defunct agency transferred to NARA would normally include both outstanding FOIA requests and appeals and records potentially responsive to those requests. But NARA has no policies or procedures for handling pending FOIA requests and appeals in such circumstances. There’s often intense interest in the records of temporary Federal agencies after their termination, especially agecnies created to conduct research and make recommendations. But NARA claims that they have never dealt with a case like this before. Probably this means the norm is for FOIA officers for temporary agencies to summarily deny everything in their backlog, on their way out the door, so that nothing will be left as “pending”.

Since NARA refused to acknowledge or act on the requests that I had already made to the NCMNPS, I had to start over from scratch with a new request to NARA as soon as it recieved the former NCMNPS recrods. I asked for some of the NCMNPS records that were most urgently needed by Congress and public to assess the basis for, and the credibility and weight (if any) which should be given to, the recommendations of the NCMNPS and the testimony that former NCMNPS members are expected to give at upcoming Congressional hearings, and to uncover records relevant to the current Supreme Court case in which responses by the NCMNPS to my FOIA requests were already being cited in briefs.

I assumed that NARA wouldn’t have the same political agenda or animus toard me as the NCMNPS, and that once the records and my requests were handed over to NARA, processing of my requests would go more swiftly and smoothly. I was wrong.

NARA’s Catch-22?

I submitted a FOIA request to NARA on 21 September 2020, the first business day after NARA received possession and control of the records of the NCMNPS.

It took four months before anyone at NARA would talk to me about how NARA planned to handle my request, or how and from whom NARA thought I should request these records. On 28 January 2021, NARA’s General Counsel and Chief FOIA Officer told me that NARA had decided months earlier (but without telling me) that it would act on neither the requests and appeals I had pending with the NCMNPS when it was disbanded, nor any new requests for most of these records.

Most of these records, NARA decided, were not NARA’s records but those of the NCMNPS, even though they are now in NARA’s warehouses or on NARA’s servers or on outsourced server accounts under NARA’s control. In consulatation with the Department of Justice, NARA had (secretly) concluded that there is no agency from which these records can be requested, and that NARA can completely ignore requests for these records, without having to provide any explanation.

NARA thinks its only responsibility is to hold onto these records and make sure nobody can see them before they are destroyed.

NARA told me they had decided this months earlier, but they hadn’t given me any notice of this decision, and they still haven’t given me any written notice. Are they embarrassed to put such a preposterous and explicitly anti-transparency argument into writing in the name of the National Archives, the mission of which is supposed to be to preserve and make available Federal records, not hide them from public access until they are destroyed?

In other cases, NARA has given proper formal notice of denial of FOIA requests, and has given FOIA requesters an opportunity to appeal (as is their right), when NARA deemed responsive records not to be “agency records” subject to FOIA. I don’t know why NARA didn’t handle my request the same way. Did they think I would go away if they ignored me? Or did they assume that I couldn’t afford to sue, and could therefore be ignored with impunity?

NARA’s postion is contrary to well-established FOIA case law that “all records in an agency’s possession, whether created by the agency itself or by other bodies covered by the Act, constitute “agency records.” (McGehee v. C.I.A, 697 F. 2d 1095, at 1109, D.C. Cir. 1983; emphasis in original). As the court explained in enunciating the McGehee rule, which continues to be binding precedent in the D.C. Circuit (with jurisdiction over NARA) and widely cited as persuasive authority in other Circuits:

This conclusion is buttressed by consideration of the probable practical effect of a different rule. If records obtained from other agencies could not be reached by a FOIA request, an agency seeking to shield documents from the public could transfer the documents for safekeeping to another government department. It could thereafter decline to afford requesters access to the materials on the ground that it lacked “custody” of or “control” over the records and had no duty to retrieve them. The agency holding the documents could likewise resist disclosure on the theory that, from its perspective, the documents were not “agency records.” The net effect could be wholly to frustrate the purposes of the Act….

[W]hen an agency receives a FOIA request for “agency records” in its possession, it must take responsibility for processing the request. It cannot simply refuse to act on the ground that the documents originated elsewhere.

(McGehee v. C.I.A, 697 F. 2d at 1110)

An agency like NARA may refer a FOIA request to another agency that “owns” specific records, but only if the “net effect” of doing so is not “significantly to impair the requester’s ability to obtain the records or significantly to increase the amount of time he must wait to obtain them.” (McGehee v. C.I.A, 697 F. 2d at 1110.) An agency can’t simply refer a request to /dev/null. If there is no other agency to which NARA can hand off responsibility for dealing with FOIA request for records of defunct agencies in NARA’s warehouses, and which will actually respond to those requests, NARA must deal within those requests itself.

I appealed NARA’s decision as soon as I was informed of it. But given NARA’s position that it can just ignore requests for these records, it will probbaly ignore my appeal as well — leaving me no meaningful recourse unless I could sue.

The months-belated, informal, unwritten notice of NARA’s decision, combined with the threat to destroy the records at issue preaturely if I didn’t sue, gave me (almost) impossibly little time to find a lawyer and come up with the money to sue. The statute of limitations allows up to six years for filing a FOIA lawsuit, and prohibits destruction of disputed recrods until that statute of limitations has expired. But NARA threatened to illegally destroy most of the NCMNPS records less than a month after telling me that NARA had pocket-vetoed and would not respond to my request.

I am extremely fortunate that Kel McClanahan and National Security Counselors volunteered to take this case under such extreme time pressure.

NARA did everything it could to induce me to sue them rather than trying to negotiate or pursue administrative appeals. Perhaps this way they can assuage their consciences that I’ve been given my day in court, but they won’t have to do deal with my request unless and until I can get a court to order them to do so. Perhaps they are liitgators who can’t imagine any other form of dispute resolution. Whatever their reasons, NARA was completely unwilling to follow the law, or even to consider making the records I have requested available unless I sued. Isn’t it nice to know that the National Archives thinks its mission is to make sure that nobody has access to the records in its warehouses, and to destroy them, and that nobody has any legal rights unless they can afford to sue?

NARA “accepted” my request (not that the law gives an agency any discretion, but that’s what NARA has done) with respect to only a very small subset of the NCMNPS records that NCMNPS staff cherry-picked to be preserved as permanent in order to create a stage-managed historical record of the work of the NCMNPS.

NARA summarily denied my request for expedited processing and my appeal of that denial, and told me that it expected to take at least 20 months to respond to portions of my request. That estimate was before I filed this lawsuit. Litigation might get me some records sooner, or delay processing — it’s too soon to tell.

NARA’s attitude toward these recquests and the underlying records has been inexplicably bipolar. NARA has released none of the records it considers “temporary”, but has been relatively prompt and relatively light-handed, byt FOIA stadards, in its redaction and release of the records it considers “temporary”. (Note that “temporary” and “permanent” are not categories in the FOIA law, and should have no effect at all on processing of FOIA requests.) Most importantly, NARA has released most of the “internal” minutes of NCMNPS meetings in their entirety, without redaction, even though the NCMNPS had withheld them in their entirety. The stark difference is further evidence, if any was needed, of the degree of bad faith in the NCMNPS handling of FOIA requests.

It’s not clear how the records NARA has released were selected or prioritized. Some of the first NCMNPS records released by NARA (including some of those that are most revealing) aren’t even among the records I requested from NARA. But they do include some records that were never disclosed by the NCMNPS, and that shed significant light on its operations, as discussed on my pages about records of NCMNPS meetings with Congressional staff and other external stakeholders.

What will happen next?

I don;t expect this lawsuit to be resolved quickly. Litigation like this can, and often does, go on for years.

On 14 September 2020, even before the NCMNPS was dissolved — and while there was still time for the NCMNPS and NARA to coordinate with each other to make sure that all relevant records were preserved — I was explicily assured as follows by the General Counsel and Chief FOIA Officer for NARA:

I can also confirm that, per the statement in [NCMNPS Chair and General] Joseph Heck’s September 11, 2020, FOIA appeal response letter to you, NARA is currently in the process of taking interim custody, for a period of approximately 90 days, of the temporary records of the Commission that are appropriately scheduled for disposal upon the termination of the Commission on September 18, 2020. As Mr. Heck’s letter states, NARA is doing so “for the purpose of allowing you to address any further legal rights related to this specific FOIA request,” which include your right to seek judicial review.

That 90-day retention poeriod was extended until this lawsuit was filed, and the filing of this lawsuit should ensure that the responsive records continue to be preserved as long as the lawsuit is pending. Unfortunately, evidence has emerged that, contrary to its promise, NARA has allowed many records, incluidng the entire filesystem of the NCMNPS Web server, to self-destruct while this lawsuit is pending, on a schedule that had been set up by the NCMNPS before it was dissolved. At this stage, more than a year after this lawsuit was filed, securiung and preserving the records in dispute remains the first issue in negotiations between NARA and me.

Before I filed this lawsuit, NARA was adamantly unwilling to negotiate. Their ultimatum was, “Sue us right away or we will destory thse records”. It’s possible that they will now be willing to discuss an out-of-court settlement that would preserve the NCMNPS records and release them to the public. But even in the event of an agreement to release these records, that will probably take months or years, given the backlog of unanswered FOIA requests pending with NARA. The median time to receive a response to a “simple” FOIA request to NARA is more than a year, and my requests for NCMNPS records have been categorized as “complex”.

Federal cases move slowly. Unless there is a quick settlement, and maybe even if there is, it’s more likely that this lawsuit will result in changes in policies and procedures that will benefit other FOIA requesters, researchers, and members of the public in the future than that it will result in the release of addtional NCMNPS records in time for them to be considered by Congress or the Supreme Court in their decision-making this year about women and the draft.

In late 2021, NARA agreed to particpate in informal mediation. Negotiations are ongoing, and several continuances of the lawsuit have been requested and granted.

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This page most recently modified 29 December 2021. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.