Request Guidelines for Loud Music, Strobe Lights in Interrogations (OSD)

An acknowledgement letter, stating the request is being processed.

Good morning Mr. Kaye,

The address you quote below is the appellate authority and is how you would appeal denial of the fee waiver.

Thank you,
Yasmeen Hargis
Freedom of Information Analyst
Office of Freedom of Information
(571) 372-0420

Director of Administration and Management
Office of the Secretary of Defense
Defense Freedom of Information Policy Office
Attn: Mr. James Hogan
1155 Defense Pentagon, Washington, D.C. 20301-1155.

March 19, 2014

Re: "Freedom of Information Act Appeal", Case No. 14-F-0430

Dear Mr. Hogan,

I am writing to appeal the decision to forego a fee waiver for my FOIA request, referenced above. On March 10, 2014 Paul Jacobsmeyer, Chief of the Department of Defense’s Office of Freedom of Information, wrote in reply to my FOIA request in regards for documents describing "the use of loud music and strobe lights in detainee interrogations”:

“While the requested information does concern the operations and activities of the government and does not appear to be intended for a commercial interest, it is not clear how the responsive documents - should they exist - would significantly contribute to the public understanding of the operations and activities of the government. After carefully reviewing your request I am denying your fee waiver request because the information stated does not support how the documents will significantly contribute to the public's increased understanding of the operations and activities of government. Please be aware that we reserve the right to grant a fee waiver should a search find documents that meet the criteria of a public interest fee waiver as described in the previous paragraph.”

While I appreciate that the FOIA office might reconsider the grant of a fee waiver, should the documents be found to “significantly contribute to the public's increased understanding of the operations and activities of government,” I believe for the following reasons the fee waiver should be granted presumptively.

1) Mr. Jacobsmeyer says “it is not clear” how my request, should documents exist, would “significantly contribute to the public's increased understanding of the operations and activities of government.” The regulations state that the release of information will “likely” so contribute, not that they “will” contribute. The question of whether or not the release of such documents, assuming they exist will “likely” contribute to the “increased understanding” criteria appears to rest upon a subjective consideration of what a significant contribution or understanding of government operations and activities consist.

2) In a March 16, 2010 memorandum on the Freedom of Information Act, written by President Obama’s Chief of Staff and Chief Counsel to Agency heads, noted, “on his first full day in office, the President directed you to administer the Freedom of Information Act (FOIA) with a ‘presumption in favor of disclosure’ and to respond to FOIA requests ‘promptly and in a spirit of cooperation.’” (see URL: http://www.whitehouse.gov/sites/default/files/rss_viewer/foia_memo_3-16-10.pdf)

It is my contention that the “presumption in favor of disclosure” argues that the question of the significance or not of a particular FOIA request should lie on the side of the requester. Mr. Jacobsmeyer says it is “not clear” to him how my request could be significant; he does not say he is certain it would not be significant. Hence, the presumption should fall on the side of the requester. This is particularly the case as the other aspects of what FOIA regulations say constitute a valid request for fee waiver are indeed met, as Mr. Jacobsmeyer concedes in his March 10 letter.

3) To add to the question of the presumption of significance I argue, I wish to add substantive evidence of the public interest in the subject of my FOIA request. Such public interest is representative of the significance accorded by the public in the subject of my FOIA request. Any further information on this subject, I submit, would constitute a “significant contribution or understanding of government operations and activities” under consideration.

Examples of such interest include the inclusion of the issue of “loud music and strobe lights” in U.S. military investigations of possible detainee abuse made after the Abu Ghraib scandal. For instance, the subject was discussed in the In the executive summary of the 2005 Department of Defense's Schimdt-Furlow investigation into alleged abuse of Guantanamo prisoners. See URL: http://www.defense.gov/news/jul2005/d20050714report.pdf

The topic has been the subject of popular culture representations. The 2009 movie “The Man Who Stare at Goats” had a scene that represented alleged use of loud music and strobe lights.

The topic has also been the subject of a number of press controversies. Most recently, the music group Skinny Puppy got a lot of press coverage for its invoice sent to the government for the alleged use of its music in interrogations on detainees, as covered, for instance, in Feb. 2014 by Time Magazine (see URL: http://time.com/4569/industrial-band-claims-u-s-government-used-their-music-to-torture-gitmo-prisoners/

Also, in 2009, the National Security Archive the National Security Archive filed 12 FOIA requests for government documents “concerning the use of loud music during detention and/or a technique to interrogate detainees at U.S.-operated prison facilities used in its War on Terror at Guantanamo, Iraq and Afghanistan during 2002-the present.” The webpage announcing their FOIA on this listed ten major newspapers that had articles on this, including the Washington Post, the UK Telegraph, Associated Press, the Wall Street Journal, and CNN, among others. Rather than list every single URL for these stories, I refer you to the NS Archive’s webpage reporting on it: http://nsarchive.wordpress.com/2009/10/22/musicians-protest-use-of-their-songs-as-torture/

4) Finally, I note that I wrote to the press office of the Department of Defense on February 3, 2014. I asked: “To my knowledge, the use of loud music and strobe lights was never disallowed by any published directive or executive order. I am asking if 1) such use of loud music and strobe lights is still currently allowed by DoD; and 2) when was the last time such a technique was used, and where? 3) Can you verify the technique itself comes under the Futility approach? If not, then what Army Field Manual approach is it subsumed under?”

On February 6, Lt. Col. Todd Breasseale answered my query: “Those interrogation techniques or approaches that are not authorized by and listed in Army Field Manual 2-22.3 are prohibited by the Detainee Treatment Act of 2005 and Executive Order 13491. The futility approach in Army Field Manual 2-22.3 does not authorize the use of loud music or strobe lights.”

Upon further query about specifics, Lt. Col. Breasseale wrote in a separate email on Feb. 6, “You'll need to FOIA for last use prior to the [Detainee Treatment] Act and the EO [13491], I'm afraid. I just don't have the information.”

Hence, when even the government’s own spokesperson cannot answer some questions about the use of loud music and strobe lights, it stands to reason that the information I seek via FOIA would “significantly contribute to the public's increased understanding of the operations and activities of government.”

In summary, I ask that the original decision declining a fee waiver be rescinded, and that a fee waiver for the press in this instance by presumptively granted. Should such a waiver not be granted, I ask that I be informed in advance of any charges made. I will note, regarding my own interest in gaining these documents to further my understanding of government operations in this instance, I will pay up to $200 in charges should a fee waiver be declined even after appeal and subsequent judgments made regarding the “significance” criterion on any documents.

Sincerely,

Jeffrey Kaye

A letter stating that the request appeal has been received and is being processed.

A letter stating that the request appeal has been rejected.

Good morning Mr. Kaye,

The current action officer for your request is Mr. Reynaldo Williams, reynaldo.i.williams.civ@mail.mil or 571-372-0439.

Thank you,
Yasmeen Hargis
FOIA Analyst
Office of Freedom of Information
OSD/JS FOIA Requester Service Center
P: (571) 372-0420
F: (571) 372-0480

Mr. Jeffrey Kaye
MuckRock News
DEPT MR 10404
PO Box 55819
Boston, MA 02205-5819

Dear Mr. Kaye:

Please be aware that our office processes all incoming FOIA requests on a first-in, first-out, basis. This means that your request was placed in a queue once it was received in our office. It also means it will be placed in a queue by the office that is tasked to search for responsive records. We already have initiated just such a search for responsive records, but the timing of the results to be provided to our office will depend on the place in the queue that your request was assigned.

If responsive documents are located, it may contain equities of another office(s) or agency(s). These office(s) or agency(s) would also be required to conduct their own review.

It is conceivable that all processing could be completed and the results provided to you at an early date, but it is also possible that more time will be required. In any case, all releasable records, if any, cannot be provided to you until all processing is completed. As soon as that occurs, we will send a formal letter to you.

We appreciate your patience and understanding in this matter.

If you are not satisfied with this action, you may petition the Appellate Authority, the Director of Administration, Office of the Secretary of Defense, by writing directly to the OSD/Joint Staff Freedom of Information, ATTN: Appeals Office, 1155 Defense Pentagon, Washington, D.C. 20301-1155; you may also submit your appeal electronically at the following link: http://pal.whs.mil/palMain.aspx. Your appeal should be postmarked within 60 calendar days of the date of this mail, should cite case number 14-F-0430, and should be clearly marked "Freedom of Information Act Appeal."

Sincerely,

Reynaldo I. L. Williams, Government Information Specialist
For Suzanne Council on behalf of
M.L. Wahling, Acting Chief, Office of Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Requester Service Center
1155 Defense Pentagon
Washington, D.C. 20301-1155
(571) 372-0439

Mr. Jeffrey Kaye
MuckRock News
DEPT MR 10404
PO Box 55819
Boston, MA 02205-5819

Dear Mr. Kaye:

There is no change to my response of March 12, 2015.

Sincerely,

Reynaldo I. L. Williams, Government Information Specialist
For Suzanne Council on behalf of
M.L. Wahling, Acting Chief, Office of Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Requester Service Center
1155 Defense Pentagon
Washington, D.C. 20301-1155
(571) 372-0439

Mr. Jeffrey Kaye
MuckRock News
DEPT MR 10404
PO Box 55819
Boston, MA 02205-5819

Dear Mr. Kaye:

There is no change to my response of March 12, 2015.

Sincerely,

Reynaldo I. L. Williams, Government Information Specialist
For Suzanne Council on behalf of
M.L. Wahling, Acting Chief, Office of Freedom of Information
Office of the Secretary of Defense and Joint Staff FOIA Requester Service Center
1155 Defense Pentagon
Washington, D.C. 20301-1155
(571) 372-0439

A copy of documents responsive to the request.

A cover letter granting the request and outlining any exempted materials, if any.