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JPRA's List of Films Held to Threaten National Security



DoD COMPONENT FLOUTS FOIA STATUTE
by Michael Ravnitzky, mikerav@ix.netcom.com

After months of delay, the Joint Personnel Recovery Agency denied in full a
request from a news organization for its list[s] of films and videotapes.
Both excerpts from the denial letter as well as the letter of appeal sent in
reply are reprinted with permission below.

If you have any concern about a government agency treading heavily on the
Freedom of Information Act statute, you might also ask for these lists.
Otherwise, next time it will be your organization being told to take a hike.

JPRA's FOIA Office is located at:

Joint Personnel Recovery Agency
Attn:  Mrs. Debra A. MacDonald, email:  debra.macdonald@jpra.jfcom.mil
10244 Burbeck Road, Suite 100
Fort Belvoir, VA  22060-5805

The denial letter read in part:  "As previously discussed in telephone
conversations with you, the JPRA library/archives has a draft list of films
and videotapes, which is withheld in accordance with...b(5).  We consider
this draft list to be an interagency communication, which is, in effect,
pre-decisional and deliberative in nature.  This draft is not only
incomplete, it is inaccurate.  Release of such a document would not only
misrepresent our inventory of films and videotapes; any release of he
information could reasonably be expected to harm DoD interests.  It is
virtually impossible to determine the classification of each film and
videotape, some of which are classified and the titles of these would be
exempt from disclosure under...b(1)."

COMMENT:  THE JPRA SAYS THAT THEIR DRAFT FILM LIST IS PRE-DECISIONAL.  THE
JPRA IN EFFECT SAYS THAT IT DOES NOT KNOW WHICH OF ITS FILMS ARE CLASSIFIED
AND WHICH ARE NOT!  THE JPRA SAYS THAT IT DOES NOT HAVE AN ACCURATE LIST OF
FILMS IN ITS COLLECTION.

"With respect to our component offices, a list of films and videotapes does
exist;  however this list also is exempt from disclosure.  Some portions of
the list relate solely to the internal practices of the JPRA...and were
withheld in accordance with...b(2) to protect agency records containing or
constituting rules, regulations, orders, manuals, directives and
instructions relating to internal practices.  Their release to the public
would substantially hinder the effective performance of a significant
function of the DoD by risking circumvention of a statute, regulation or
policy. [...] Other portions of the list contain identifying information of
individuals, which is withheld to protect against a clearly unwarranted
invasion of personal privacy in accordance with...b(6). [...] Finally, the
list is classified CONFIDENTIAL and therefore withheld in its entirety
under...b(1).

COMMENT:  THIS IS CLEARLY STONEWALLING.  DISCLOSING A JPRA FILM LIST WOULD
NOT RISK CIRCUMVENTION OF A STATUTE OR REGULATION.  DISCLOSING INDIVIDUALS
NAMES MAY NOT NECESSARILY BE AN UNWARRANTED INVASION OF PRIVACY GIVEN THE
CONTEXT OF THE NAMES.

HERE IS THE APPEAL THAT WAS SENT.

=========================================================

July 18, 2000


FREEDOM OF INFORMATION ACT APPEAL


Department of Defense
Directorate for Freedom of Information and Security Review
Room 2C757
1155 Defense Pentagon
Washington, DC  20301-1155


Dear Sir or Madam:

We hereby appeal the denial in full of our FOIA request to the Joint
Personnel Recovery Agency.

APBnews.com requested a copy of JPRA's list of films and videotapes.   This
record was withheld in full with the ostensible reason given that the
records were pre-decisional (b(5), and that the records were classified
(b(1).  An analogous list held by the component offices was denied because
the records relate to internal agency practices (b(2), and that the records
contain identifying personal information (b(6).

JPRA has made it clear in its telephonic communications that it will do
whatever is necessary to prevent the release of these lists.  The decision
to withhold was clearly made before a full and impartial assessment of the
records in question.  That aside, we appeal on the following grounds:

1)  The FOIA statute requires the disclosure of records, not of information
or data.  The courts and the agencies have repeatedly reiterated that the
statute covers the disclosure of records and not data.  JPRA has withheld
the record as a "draft list" that is pre-decisional and deliberative in
nature.  Under standard interpretation of the deliberative process
privilege, this list of films would not qualify for such privilege because
it is factual, it does not relate to a decision-making process, and
withholding would not protect the interests served by the b(5) exemption.


2)  B(1) only covers those records or portions of records that are properly
and currently classified.  Just because the contents of a film or videotape
may be classified or may have been classified in the past, does not mean
that the title of the film or videotape is classified.  JPRA has proceeded
based upon this incorrect assumption.  In any case, we request a
declassification review of the materials ostensibly designated as b(1)
because it is clear that this underlying assumption is invalid.


3)  Because the DOJ has instructed federal agencies not to invoke the low
b(2) exemption, the exemption cited must be by default the high b(2)
exemption.  JPRA has concocted the absurd construction that a release of
film titles constitutes a release of agency practices that would risk
circumvention of DoD rules.  It is well understood that the JPRA deals with
escape and evasion techniques as well as other matters such as information
on MIA/POW issues.  Providing a list of film and videotape titles would not,
as such, risk circumvention of DoD rules and regulations.

If one applied this absurd concoction to other agencies and other
situations, no agency would ever release any troublesome records because one
could insist that release of any records could be held to "hinder the
effective performance" of the agency.  We do not believe that this is a
proper or even rational test to apply in this instance.  Application of the
b(2) exemption carries a "high" bar, and this application is flawed.


4)  While b(6) may apply in a few instances, this does not preclude the
release of the remaining portions.


Finally, the statute requires the release of "all segregable releasable
portions".  JPRA has not even made a modest attempt to release these records
in part.

We are extremely disappointment with the response by JPRA's FOIA Office in
this instance, which is a slap in the face to those attempting to better
understand and report on the issues associated with the JPRA mission and
functions.  We ask that this decision be reversed.


Sincerely,


Mark A. Sauter
Chief Operating Officer
APB Online, Inc.
65 Broadway, 17th Floor
New York, NY  10006


cc:  DoD Distribution

Encl:  Denial Letter June 5, 2000

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