FBI OTD/BAU 2018

To Whom It May Concern:

You are receiving this correspondence as a request under the Freedom of Information Act, 5 U.S.C. subsection 552. I am requesting the following:

Copies of 2018 reports issued by the Federal Bureau of Investigation on the subject of Havana Syndrome: first, an interim report dated January 4, 2018, from the FBI's Operational Technology Division; and second, a report, date unknown but issued that same year, from the FBI's Behavioral Analysis Unit. If these two items constitute one larger report issued at a later date, please clarify in writing and release all responsive documents.

The Operational Technology Division (OTD) interim report was first identified in a story published by the Associated Press on January 18, 2018 ("Tillerson tells AP Cuba still risky; FBI doubts sonic attack"). Existence of the Behavioral Analysis Unit (BAU) report was made public by then-New Yorker journalist Adam Entous on May 24, 2021 ("Are U.S. Officials Under Silent Attack"). The OTD reports covers the FBI's findings regarding the likelihood of an attack on U.S. diplomats using so-called "sonic weapons," while the latter BAU report includes conclusions about the psychological states of Havana Syndrome victims based, according to Entous, "on transcripts of previous interviews that the F.B.I. had done with the patients." There should be no concerns over national security in releasing these reports. Similar information is conveyed in a 2018 report commissioned by the State Department and issued by the JASON advisory group, and is publicly accessible courtesy of a Buzzfeed News article published on September 30, 2021 ("A Declassified State Department Report Says Microwaves Didn’t Cause 'Havana Syndrome'"); the National Academies of the Sciences also published findings on the subject in a 2020 report titled "An Assessment of Illness in U.S. Government Employees and Their Families at Overseas Embassies".

The OTD and BAU reports are of immense public interest at this time. The BAU report in specific has been referenced in over a dozen articles since Entous first reported on it, including additional coverage in The New Yorker, as well as writing in the following publications: the Harvard Gazette ("Rush to stop ‘Havana syndrome’", October 8, 2021); Reuters ("FBI calls dealing with 'Havana Syndrome' a top priority", November 24, 2021); and the New York Times ("Most ‘Havana Syndrome’ Cases Unlikely Caused by Foreign Power, C.I.A. Says", January 20, 2022). The newsworthiness of Havana Syndrome alone should warrant the release of both reports but the fact that the BAU report continues to appear in news coverage indicates that it too is an item of continued public interest. Additionally, Entous has already reported the conclusion of the BAU report in The New Yorker article, noting that the Bureau ruled patients suffering from Havana Syndrome were/are suffering from some form of psychogenic illness. Although the Bureau may no longer hold this position publicly, prior disclosure of this information by a news organization should nullify any need for discretion, whether on behalf of the patients or the Bureau.

I am asking you waive any fees associated with this request. I am a member of the news media, with bylines including Covert Action Magazine, Janata Weekly, and Philly Voice. Please take note of the Office of Management and Budget guidelines published March 27, 1987 (52 FR 10012) that include electronic publications and other nontraditional publishers as representatives of the news media.

This request is not being made for commercial purposes. All documents will be provided to the general public without charge.

In the event that there are fees, I am willing to pay up to $100. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

I look forward to your response within 20 working days, as the statute requires. If access to the records I am requesting will take longer, please contact me with information about when I might expect copies or the ability to inspect the requested records.

If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law.

Sincerely,

Robert Skvarla, Jr.

September 16, 2024

Director, Office of Information Policy
U.S. Department of Justice
441 G Street, NW, 6th Floor
Washington, D.C. 20530

RE: FREEDOM OF INFORMATION ACT APPEAL FOIA 1570125-000

To the Director of the Office of Information Policy:

I write to appeal the final decision of the Federal Bureau of Investigation (FBI) partially denying the Freedom of Information Act (FOIA) request that I, Robert Skvarla, Jr., submitted on October 11, 2022 seeking a copy of the FBI Operational Technology Division’s (FBI OTD) report regarding its findings on anomalous health incidents, aka Havana Syndrome. On July 30, 2024, the FBI partially denied the Request under Exemption 7(e) U.S.C. § 552(b)(7)(e), and returned a redacted copy of the requested report.

As you may know, anomalous health incidents (AHI) are events occurring between roughly 2016 and the present day that have resulted in a condition, or a series of related conditions, afflicting intelligence agents and diplomats working for the governments of the United States and Canada. In 2017, the Associated Press (AP) reported on a number of such incidents that happened in Cuba the year prior that led to the United States pulling staff from its embassy in that country. Since then, AHI have continued to generate considerable media attention, and stories focusing on the national security implications have appeared in the New York Times and The New Yorker, among many other publications. Based on sources within the Intelligence Community, journalists have suggested that AHI might have been caused by acoustic weapons, or ranged weapons that use high-power sound waves to injure or incapacitate a target.

In January 2022, however, the Central Intelligence Agency issued an interim report stating that the agency found no evidence to support claims that a foreign adversary such as Russia or China was responsible for causing AHI. This was supported by an intelligence assessment published by the Office of the Director of National Intelligence on March 1, 2023, that states, in part, "most [Intelligence Community] agencies have concluded that it is 'very unlikely' a foreign adversary is responsible for the reported AHIs."

As of September 2024, there have been over 200 reported AHI. Given that most of these individuals have been identified as high-ranking officials across multiple federal agencies, including the FBI, any investigations into claims of AHI and/or the effects of acoustic attacks on humans would be of considerable public interest. This is especially important in light of the fact that, as part of the HAVANA Act of 2021, both Congress and the President approved compensation in the range of $140,000 or $187,000 per person to individuals diagnosed as suffering from AHI.

Despite the obvious public interest in obtaining records pertaining to the FBI OTD’s findings, the FBI invoked the Privacy Act to prohibit disclosure of the relevant records, and otherwise claims that the records are generally exempt subject to Exemption 7(e) U.S.C. § 552(b)(7)(e). Exemption 7 applies to records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information would “disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.”

It does not appear, however, that Exemption 7(e) properly applies here – not least of all because the cited exemption requires courts to “balance the public interest in disclosure against the interest Congress intended the exemption to protect.” U.S. Dep’t of Defense v. Fed. Labor Relations Aut., 510 U.S. 487, 495 (1994). The public interest in these records, as will be detailed below, directly demonstrates how Congress intends for information on such an investigation to be made public when the health of public officials may potentially be at risk. The countervailing privacy interest – in this case, protecting investigative techniques relevant to FBI OTD’s investigation into alleged acoustic attacks – is negligible, and cannot overcome the public interest at issue here.

The records should be disclosed accordingly.

Exemption 7(e) requires that the agency demonstrate logically how the release of the requested information might create a risk of circumvention of the law. Mayer Brown LLP v. I.R.S., 562 F.3d 1190, 1194 (D.C. Cir. 2009). It is not clear based on the information already released by the FBI that any risk exists. The redacted report withholds information that is already public or is likely to be in the public domain.

First, a section labeled “Witness Interviews and Symptomology” is entirely redacted except for part of a sentence which states: “The reported symptomology includes feelings of disorientation, nausea, and ringing in the ears are subjective in nature and not uncommon effects of audible sounds…” Victims of anomalous health incidents, some public and others anonymous, have discussed these symptoms publicly. As an example of a publicly acknowledged victim, please refer to Mark Lenzi, a State Department employee who has spoken with news organizations ranging from the New York Times to 60 Minutes about his symptoms; and for an anonymous example, please refer to “Adam”, aka Patient Zero, an employee of the Central Intelligence Agency who was the first individual to report an anomalous health incident in Cuba. Fox News spoke with this individual in April 2023, identifying him in an article titled “Havana syndrome: Foreign adversaries' microwave weapons capabilities explained by physicist”, where he discussed symptoms related to his condition. Given that these individuals have identified symptoms in public forums, and they are representative of a larger body of victims who have also gone public, it is not clear why this section of the report has been redacted. There is no compelling interest in withholding information when the subjects of such an investigation have made public statements.

Next, a section labeled “Event Recordings” is entirely redacted except for a sentence which states: “Prior to the site visits, the OTD received multiple audio recordings that were associated with the occurrence of these incidents.” On October 23, 2017, Josh Lederman and Michael Weinstein of the AP published an article titled “Dangerous sound? What Americans heard in Cuba attacks.” which included a link to an AP YouTube channel (https://youtu.be/Nw5MLAu-kKs?si=GCB6A3WIO6FP4tRR) that reproduced an audio recording of a sound heard by AHI victims in Cuba. Another recording was reproduced during an episode of CBS’s 60 Minutes on February 20, 2022, when a representative of the 60 Minutes team interviewed an anonymous government official who claimed he recorded audio of the sound at his home in Havana. These are two instances where event recordings have been disclosed to the public by outside parties, and demonstrate that information about such recordings has appeared across multiple news sources. There is no compelling interest in redacting this section of the report.

Additionally, exemption 7(e) does not apply to techniques that are generally known to the public or depicted in movies or stories, such as eavesdropping, wiretapping or surreptitious tape recording and photographing, Albuquerque Publ’g Co. v. U.S. Dep’t of Justice, 726 F.Supp. 851, 858 (D.D.C. 1989). Techniques listed in the redacted report, which include site surveys, audio analysis, and crime scene mapping, are publicly known. Releasing information about these techniques would pose no risk to the FBI or any active investigations.

Thus it is clear that it would not serve the purposes of the FOIA to allow the government to withhold information to keep secret an investigative technique that is routine and generally known. Rosenfeld v. U.S. Dept. of Justice, 57 F.3d 803, 815 (9 th Cir. 1995). Nor can the government withhold information by simply saying that the “investigative technique” at issue is not the practice but the application of the practice to the particular facts underlying that FOIA request. Id.

Finally, the FBI itself, in its conclusion on page 9 of the report, observes that “[Audio Surveillance Unit] believes that acoustics has not played a role in the exhibited [mild traumatic brain injury] or other symptoms of [United States Government] personnel and that another cause exists.” Although the rest of the conclusion is redacted, this clearly demonstrates FBI OTD found no evidence of an acoustic attack. Withholding information on the basis of potential circumvention of the law, where no evidence a law has been broken, constitutes excessive secrecy and violates the very purpose of the FOIA.

For the foregoing reasons, I ask that you reverse the partial denial of the Request and grant the Request in full. To the extent that you affirm, in whole or in part, the denial of disclosure, I ask that you provide a detailed explanation of your reasoning. Because this information is on a matter of great public interest, I request expedited treatment of this appeal pursuant to 15 CFR § 2004.6(c)(2)(i). In any event, I trust that we will receive your decision within 20 business days as required by 15 CFR § 2004.6(c)(1) and 5 U.S.C § 552(a)(6)(A)(ii).

Thank you for your prompt attention to this matter. Please feel free to reach out to me at any time.

Sincerely,

Robert Skvarla, Jr.