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The Quest for Public Records (May 20, 2021, Updated 26 May)

My research for the Malheur takeover has led me into the morass of public records. In theory these are documents created by public agencies which should be available to the citizenry. Some official material on the Malheur occupation is available, but most of the reports and documents created by the FBI and the Oregon State Police have not been released.  In Oregon, one of the questions state officials have to ask themselves is if releasing the records would be in the “public interest.”  The trick is that the “public interest” does not mean “is the public is interested” but rather if it “would be good for the public to know these things.” The people making that decision on your behalf are the people who created and control the records. So you can see the problem:  An agency that might want to keep something under wraps is the same agency that decides if the public would benefit from knowing this. There can be a lot of reasons why the agency doesn’t want to disclose something, some valid (how to use Anthrax in germ warfare), some not, such as covering up illegal activity by the agency, or just being embarrassed by something they did. But if that something is never revealed and there is no outside body that says “release that” then there is a problem.

Starting with the FBI: Among other things, I learned that during the Malheur occupation, the FBI created “baseball cards” with the photo of the occupation leadership, and some data about them. These baseball cards were handed out to the FBI agents and Oregon State Police. You may remember the Army did a similar thing with Ba’ath party leadership in the early days of the Iraq War. I’d love to see them-what a great detail to have in the book, and how interesting to see what the ‘on the ground’ officers were told.

To keep things manageable, I put in a Freedom of Information request to the FBI for materials related to the killing of LaVoy Finicum. FBI agents were in charge of the operation where he was killed, and one was eventually brought to trial for lying about firing at Finicum (He was acquitted, but as a juror said, “Someone is lying, we just don’t know who.”)  I was told there was material available, but I would have to get at the end of the line in terms of getting it sent to me unless I could show cause why it should be released quickly.  I made my appeal for a quick release, but it was turned down.

With the Oregon State Police, I was told by their public records staff that there were two reports that I should start with, and after reading them, I might have other material to request. So I requested those two reports, and was told the fee to get the redacted files to me would be $775.  My!  I asked how long the reports were, and learned that, together, they are 93 pages. 

Line of uniformed state troopers

Since state guidelines are for agencies to work with requestors of information if the fee is more than $250, I filed an appeal.  After a week or so, they agreed to a reduction. Now those 93 pages would cost me $620. I was also told that I would have to pay a fee (not specified) just to find out what other files existed. That’s not to get the files, just to be told the names of the files.

I appealed to the state “Open Records Advocate,” a man whose job is to help people get public information. He said, in effect, “well, you could just buy one of the reports, and that would cost less.” Then I contacted my State Senator and representative.  The Senator’s staff did not respond. The Representative’s staff called up the state police and asked “what would you charge my office if they requested this file?”  Same price. They said that was all they could do.

Now I have to go back to family history. My father occasionally told the story that when we lived in New Mexico (and I was about 10) a candidate ran for the US Congress that he liked a lot. I think it was Manuel Lujan. Lujan was born at the San Idelfonso pueblo, so the Old Man might have met him when he was working for the Bureau of Indian Affairs. Whoever it was, Dad gave the candidate a $100 donation- a lot of money in the 1960s.  The candidate won, and let Dad know that if ever he needed help to contact his staff and let them know that he was an ‘original donor.’ Pop was in the federal civil service, and there were evidently a few times when he had troubles at work. On those occasions he would request, and receive, help from the Congressman.  Dad said that it was the best $100 he ever spent.

Back to Oregon.  The former head of the faculty union at my last employer is a good man, and when he ran for the legislature (and later the state senate) I made contributions and did campaign work for him, writing postcards and handing out literature.  I told myself that I did that because he is a good man, and I wouldn’t ask for any favors if he was elected.  You may know the adage, “If you want to make God laugh, tell him your plans.”  I contacted that Senator and asked for help getting a more reasonable fee.

He contacted a couple of people at the State Police, and I was optimistic, but learned later that it was a no go.  Still $620 for 93 pages. 

But all was not lost!  On the same day, a CD-Rom from the FBI came in the mail.  I eagerly popped it into the player, and found six files and a letter.  The letter said they were sending material that had already been requested (the six files) and they considered the request closed. I opened the six files, to find that they were all newspaper clippings. No FBI documents at all. So I sent a response to the FBI saying “no, I want FBI documents” and I made my last appeal for the Oregon State Police records, this one to a lawyer who works in the Public Records division of the Oregon Attorney General.

Yesterday, I got word from the Oregon Department of Justice that the State Police have agreed to lower their fee to $250.  That is still outrageous, but I have a book to write, and agreed to pay it.  It should arrive (I hope with light redactions) in six weeks.  I’ll post it on this website when it arrives. [NOTE: Posted on the “Malheur” tab 8 Jul 2021 as Oregon State Police Incident SP 16026132]

By coincidence, I have been reading Nicholson Baker’s new book Baseless. It is about his efforts to get the CIA and Air Force to declassify material related to Biological Warfare probably practiced by the US during the Korean War. He is being stonewalled, so he chronicles those efforts, while telling stories (backed by documents of what has been released) on just how deep and nasty our government’s work with Biological Weapons has been. Hair-raising. One example, to make one wonder “what were they thinking?” When Richard Nixon became President, he became fully aware of how deep the U.S. was in developing these weapons. He made a public proclamation that the US was ending this practice, and evidently that happened. The Soviets shut down their own efforts in response. Then, a few years later, someone at the CIA thought it would be a good idea to ‘leak’ to the Soviets false information that the US had re-started its program. The Soviets believed this false information, and immediately restarted their own bio-weapons program on a big scale. Baker found a document in which an analyst at the CIA said “The Soviet response was not what we hoped for or anticipated.”

As Baker says “How can government act with the consent of the governed if it refuses to tell the governed what it has done?”

UPDATE May 26: A letter came from the FBI, saying that after they sent me the newspaper articles, “An additional search as conducted, and no additional records were located.” This of course is baloney. I have the names of at least 78 officers who were involved in the Malheur affair. A file with their names and contact information is linked to this blog. One of them, Joseph Astarita, was brought to trial in federal court for lying when he said he didn’t shoot at LaVoy Finicum when that occupier was killed. (Astarita was acquitted, but as a juror pointed out, someone was lying, but they couldn’t say beyond a doubt that it was Astarita.) Astarita was a member of one of the three different FBI Hostage Rescue Teams employed at the arrest. The FBI’s lead negotiator at Malheur, “Mark” was involved in bringing Franklin Graham to the refuge and talking the last four occupiers into surrendering. (The negotiator used the name “Mark”, but it has been established that many FBI agents used pseudonyms at Malheur, even with the Oregon State Police whom they worked with.)

But despite all this involvement- the FBI says it has nothing but some newspaper stories.

There is an appeal process. I can contact the Director, or appeal through the FBI website, or contact the Office of Government Information Services at the National Archives. The hunt goes on.

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