FOIA Commentary: Vexatious Requesters

On June 7, 2018, the State of Connecticut enacted a law that permits its Freedom of Information Commission to relieve an agency from responding to a "vexatious" requester for up to one year.  The grounds for being considered vexatious can include the number of requests, the scope of the requests, the nature or content of the requests, and/or a pattern of conduct that amounts to abuse. The staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- share their views on the whether the federal government should adopt a similar provision.  

RM:  The issue of so-called "vexatious" requesters is a difficult one, in my mind, if only because the term "vexatious" is so hard to define.  Are you vexatious if you merely submit a duplicate request?  What if you submit multiple requests to the same agency on the same day, but those requests are on different subjects?  Should an agency treat someone as a vexatious requester if he is responsible for some pre-defined percentage of an agency's FOIA processing queue or backlog, regardless of any other considerations?  Any approach will present a unique set of problems. 

The new Connecticut law handles the question is an interesting way by assigning actual responsibility for determining whether a requester is vexatious to a state-wide commission.  Some of the factors to be considered include the number of requests filed, their scope, their subject matter, and whether the requester has exhibited a pattern of abusive conduct--whatever that is supposed to mean!  I appreciate removing the agency from the equation, but this still leaves the government too much discretion.  The state legislature should have given a clearer definition of "vexatious," and better procedural protections for an aggrieved requester.  The only option for appeal is filing a lawsuit.

I would be disinclined to see the federal government adopt a similar provision.  Do we really want agencies to be making these open-ended inquiries into vexatiousness?  Could some entity, say, OGIS or DOJ-OIP, handle the matter government-wide?  There has been a lot of politicization of FOIA processes during the Trump and Obama Administrations.  Allowing an agency to dismiss a "vexatious" request would probably just open the door to more abuse.  Plus, do we really know if this is wide-spread problem?  I want to see the data.

AB:  Interestingly, Ryan, NARA's FOIA Advisory Committee considered this issue a few years ago in the context of fee reform and it raised a number of the same concerns that you identified. I believe the Committee ultimately abandoned the idea, which strikes me as the right call.  As it stands, federal agencies are not required to process unreasonably described requests or to conduct wide-ranging, unreasonably burdensome searches.  If we are concerned about the rising burden of voluminous requests (and we should be), I would prefer to amend the fee provisions -- e.g., eliminating favored fee categories and/or reducing free search time to 30 minutes -- than to add a nebulous "vexatious requester" exception.  

KS:  I sympathize with the fact that some members of the public may use public records laws in a way that drowns some agencies in requests, but, like Ryan, I have serious issues with proposals I've seen to handle the issue. I also think it's possible that the treatment may be worse than the disease in some cases. As Ryan discussed, there's a whole can of worms that's opened if "vexatious requester" laws take effect.  The Connecticut law doesn't specifically address, for example, if or how decisions and the rationale to label a requester as vexatious will be publicly posted or explained. Without releasing enough public information, that could lead to FOIA requests to obtain information about the process of banning requesters. 

I'm not familiar with the issues that led to this proposed change (although proponents touted anecdotes of individuals filing numerous requests over a certain time frame), but I am confused as to why this would be an issue when the state charges fees tor search time and copies. Presumably, charging fees in accordance of the law would deter a deluge of requests. 

Put me down as opposed to any proposal to bring this to the federal government. The last thing we need is another federal entity dedicated to adjudicating agency complaints about requesters. How much already precious staff time would be wasted on writing up complaints?

Commentary: Let the sunshine in

On March 13, 2018, the Senate Judiciary Committee will resume its tradition of holding a FOIA hearing during Sunshine Week.  If they were Senators for a day, here are the questions that the staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- would ask the witnesses from the government and the requester community.

AB:   Among the questions I would want to ask the government witnesses is whether they support or oppose updating the Office of Management and Budget's 1987 FOIA fee guidelines.  In light of changes in technology and case law in the past thirty years, OMB's guidelines appear to be outmoded in several respects.  I also would like to hear the government's suggestions for reining in litigation-related costs, which have increased for the past eight consecutive fiscal years and topped $40 million in FY 2017.

To the requester community, I would ask the witnesses  -- presumably all of whom will be active FOIA requesters -- whether they have availed themselves of the dispute resolution services offered by the Office of Government Information Services, which was created ten years ago primarily to help the public resolve FOIA disputes.  And I would ask whether the witnesses would support any statutory provision addressing the issue of "vexatious" requesters, as certain local and foreign governments have enacted.

RM:  With respect to the government, I'd be interested in know how many agencies have been diligent in modernizing their reading rooms and actually starting to proactively disclose frequently-requested records, as set forth in the FOIA Improvement Act of 2016's "Rule of Three."  I'd also like to know how many agencies have updated their FOIA regulations.  Section 3 of the Improvement Act required agencies to implement the statutory amendments within 180 days; I suspect many agencies have yet to do so.  More globally, however, I'd like to know whether OIP has pushed agencies to update other aspects of their FOIA policies and procedures, including fee provisions.  Even with the introduction of DOJ's template or "model" FOIA regulations, a few agencies are still sticking with OMB's outdated "organized and operated" standard for defining news media requesters, or they're even inventing their own extra-statutory requirements, such as the SEC with its proposed definition of an "educational institution."

For requesters, I'd like to hear more anecdotes about how FOIA customer service has changed under the Trump Administration.  There's been a lot of accurate reportage about "sensitive review" processes being enhanced by political appointees.  Yet I've personally experienced some minimal improvements at a handful of agencies, perhaps because of an effort to resolve long-pending requests from the backlog.  I also want to know whether any sophisticated requesters--that is, those who typically appeal or litigate their requests--have had success in getting agencies or courts to take the newly-codified "foreseeable harm" standard, 5 U.S.C. § 552(a)(8)(A)(i), seriously.  The only reported decision I've read made our list for the "Top FOIA Decisions of 2017."  I'd like to know if we missed any, or if the standard is being considered at the administrative level.

KS:  For the government, I have some questions about the launch of the new FOIA portal FOIA.gov. Some preliminary praise is due for the FOIA.gov build. In my limited time with it, it seems functional and easy to use. The same cannot be said for most government websites. From my quick checking, I found components (I checked HQ/Office of the Secretary for most) of the following agencies are not linked in the FOIA.gov system: HHS, DHS, HUD, State, USDA, EPA (which is still on FOIA Online). Are those agencies expected to join the system and if so, when will that happen? Speaking of, what is the fate of FOIA Online with the release of FOIA.gov? DOJ OIP should be asked about its own record in responding to complex requests. According to FOIA.gov, OIP has an average of 483 working days for complex requests with 35 requests older than 400 days in FY2016 and 8 in FY2017. What gives? .

I concur with Ryan here on the requester side. It will be interesting to see what the requester community says during Trump's first Sunshine Week. I wonder if some of the usual suspects may put a different spin on a Sunshine Week project or if we'll get most of the usual reports. The backlog point is interesting as well. EPA has publicly announced its intention to focus on its backlog of requests -- presumably at the expense of new requests. I wonder if other agencies are following suit. Overall, the FOIA experience for me in the last year has been largely the same, so I'm excited to find out what the community has in mind. 

Commentary: Top Exemption 4 decisions of 2017

The large majority of FOIA decisions issued each year resolve disputes concerning the adequacy of agency searches and/or the withholding of records on privacy, law enforcement, or civil discovery grounds.  Typically, only a small percentage of FOIA disputes involve Exemption 4, a provision that protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” But Exemption 4 cases are among the FOIA’s most legally complex and can have a big impact on a company’s bottom line and business practices.  As 2018 gets under way, Allan Blutstein looks back at some of the key Exemption 4 decisions issued over the past twelve months.    

Am. Small Business League v. DOD (9th Cir.) (unpublished)

In 2014, the Northern District of California ordered the Pentagon to release documents concerning Sikorsky Aircraft’s participation in the agency’s Comprehensive Small Business Subcontracting Plan.  In reaching its decision, the district court rejected as “not enough” Sikorsky’s declaration that the “‘[r]elease of the information . . . would cause substantial harm to the company’s competitive position,’ on the basis that a competitor ‘could’ use such information to assess the strengths and weaknesses of Sikorsky’s bid proposals to the agency.” 

On appeal, the Ninth Circuit reversed the district court and held that Sikorsky’s declaration “at least created a genuine issue of fact.”  The Circuit observed that Sikorsky had identified its competitors and averred that those competitors “could use the redacted information to gain a significant competitive advantage.  Nothing more is required to gain protection from disclosure under Exemption 4, and the district court erred in ruling otherwise.”

Frank LLP v. Consumer Fin. Prot. Bureau (D.D.C.)

In a decision otherwise favorable to the government, the court ruled that CFPB had an improper policy of treating records provided to it in response to civil investigative demands (CIDs) as "voluntarily" submitted -- and therefore entitled to greater protection -- for Exemption 4 purposes.  The court reasoned that such submissions should be treated as mandatory because CFPB possesses the legal authority to issue CIDs (which are functionally equivalent to administrative subpoenas), as well as the power to seek judicial enforcement if a CID is ignored.  Going forward, this ruling requires CFPB to evaluate whether releasing CID-obtained records will likely cause substantial competitive harm to the submitter, as opposed to evaluating whether the submitter customarily treats those records as confidential. 

Ctr. for Pub. Integrity v. U.S. Dep't of Energy (D.D.C.)

Here, the court rejected plaintiff’s novel argument that agencies are automatically precluded from invoking Exemption 4 to withhold records related to a corporation’s wrongdoing -- in this instance, illegal lobbying.  The court’s other notable ruling addressed whether the corporation's production of documents in response to an agency “notice letter” was voluntary or involuntary.  Although the agency component that possessed the legal authority to compel production did not author the notice letter, the court found that the agency's letter offered the corporation "no real choice" and that the "very real specter of government compulsion" was sufficient to render the production involuntary. 

Det. Watch Network v. U.S. Immigration & Customs Enforcement (2d Cir.), cert. denied 583 U.S. __ (2017)

The Second Circuit dismissed an attempt by private detention facility contractors to overturn the Southern District of New York’s 2016 decision that the unit prices, bed-day rates and staffing plans appearing in government contracts were not confidential.  Notably, the government declined to join the appeal and let stand the district court’s threshold finding that the negotiated contractual terms were not “obtained from a person” for Exemption 4 purposes, contrary to numerous decisions in multiple circuits.   

Commentary: The Top Five FOIA Decisions of 2017

Federal courts issue hundreds of decisions in FOIA cases every year.  Most do not break new legal ground or attract media attention.  As 2017 draws to a close, the legal eagles of FOIA Advisor -- Allan Blutstein (AB) and Ryan Mulvey (RM) -- identify the top five cases that stood out to them (in no particular order).   

1.  Price v. U.S. Dep't of Justice Attorney Office (D.C. Cir.) -- ruling in 2-1 decision that plea agreement waiving criminal defendant's FOIA rights "offends public policy and is therefore unenforceable." 

See FOIA Advisor's previous commentary on this case here.  

2.  Detroit Free Press v. DOJ  (S. Ct.) -- denying requester's petition for certiorari, leaving in place Sixth Circuit's decision that mugshots are protected from disclosure by Exemption 7(C).  

AB Comment:  Because the Sixth Circuit's decision brought itself in line with other circuits that have addressed the issue, this petition faced extraordinarily long odds.     

RM Comment:  And that Sixth Circuit decision, despite what the petitioner and amicus argued, still preserves Exemption 7(C)'s important balancing test for considering a person's recognized, non-trivial privacy interest in his mugshot against the public interest interest in disclosure.

3.  Lucaj v. FBI (6th Cir.) -- concluding that documents exchanged between DOJ Criminal Division and foreign governments could not be protected under Exemption 5 because they did not meet the "inter-agency" or "intra-agency" threshold. 

AB Comment:  The court declined to expand the scope of Exemption 5 as other circuit's have done, and instead relied upon a cramped reading of Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001).

RM Comment:  Agreed.  In my mind, the Klamath court was pretty clear that it was avoiding the question of whether Exemption 5's threshold requirement could be satisfied on a "consultant corollary" theory.  Unlike the Native American tribes at issue in that case, I find it hard to believe that the Austrian government wasn't serving in a consulting capacity by responding to a DOJ Criminal Division "request for assistance."

4.  AquAlliance v. U.S. Bureau of Reclamation (D.C. Cir.) -- finding that agency properly invoked Exemption 9 to withhold information regarding the construction, location, and depth of water wells; rejecting plaintiff's argument that the exemption applied to oil and gas wells only.  

AB Comment:  A rare Exemption 9 appellate case, which is enough to make this list.  

RM Comment:  Honestly, I'd never read an Exemption 9 case before this opinion issued.

5.  Ecological Rights Found. v. Fed. Emergency Mgmt. Agency (N.D. Cal.) -- the first reported decision to cite the statutory provision enacted in 2016 that requires an agency to demonstrate that disclosure would reasonably harm an interest protected by an exemption, 5 U.S.C. § 552(a)(8)(A)(i)-- in this case Exemption 5 (deliberative process privilege).  

AB Comment:  It is unclear to me that the result would have been different in the absence of the so-called "reasonably foreseeable harm" provision.  But I expect FOIA litigants to be citing this case for the foreseeable future.

RM Comment:  I'm not surprised that the "reasonably foreseeable harm" provision was first applied in a case involving the deliberative process privilege.  It seems most applicable in that context.  I'm still unsure how it will work with the other exemptions.  (I also don't know what the other part of the same statutory clause ("disclosure prohibited by law") adds to Exemption 3.)  In any case, it will be interesting to see whether other courts require so detailed an explanation of how disclosure of specific records may harm the particular deliberative processes that they implicate.

FOIA Commentary: FOIA at any price?

In a 2-1 decision issued last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Department of Justice could not deny a criminal defendant's FOIA request about his case even though he had expressly waived his FOIA rights in a plea agreement.  The majority reasoned that such a waiver provision serves "no legitimate criminal-justice interest" and was therefore unenforceable.  The dissent argued that the waiver should have been upheld because the requester had agreed to it knowingly, voluntarily, and intelligently. Moreover, the dissent viewed the majority's "legitimate criminal-justice" standard as a distortion of Supreme Court precedent. The staff of FOIA Advisor -- Allan Blutstein (A), Ryan Mulvey (R), and Kevin Schmidt (K) -- weighs in.

A.   I was persuaded by the dissent -- a shocking conclusion from a law-and-order conservative, I know.  The Department of Justice should be able to rely upon plea bargains to prevent criminals from endlessly trying re-litigate their cases through infinite FOIA requests -- a burden that the FBI in this case apparently failed to fully explain.  Other FOIA requesters who settle their cases in litigation also should be precluded from requesting once-disputed records if the joint stipulation of dismissal includes an express waiver of FOIA rights.  If the stipulation is silent on the matter (which is typically the case), however, I would permit the requester to make a subsequent request for the same records.

R.  I agree with you, Allan.  In the end, this seems like a straight-forward case.  Even if we accept the Court's standard--namely, that a criminal defendant's waiver of any particular right must serve a "legitimate criminal-justice interest"--the result here seems to foreclose a FOIA waiver ever being included in a plea agreement, despite the Court's claims to the contrary.  The Court (correctly, I think) held that Congress has never affirmatively prohibited the waiver of FOIA rights and that the structural purpose of the statutes isn't frustrated by waiver as such.  But the analysis of the public policy concerns leaves little room for factual distinction.  What criminal defendant isn't capable or interested in using the FOIA as a means of discovery of exculpatory evidence or to prove ineffective assistance of counsel?  And remember that the requester in this case only agreed to a limited waiver.  I don't think it is coincidental that every other court to address this issue has come to a different result.

As for requesters who stipulate dismissal of FOIA claims as part of a "settlement," I agree that they should be held to the terms of the agreement.  But I do wonder whether there are any changes in legal standards or factual circumstance that render those stipulation agreements unenforceable.  That's certainly the case with res judicata and collateral estoppel in instances where a court enters final judgment.

K.  I'll leave the legal analysis to my more qualified colleagues, but I don't see any great injustice in an agreement that includes waiving rights under FOIA. Shouldn't a defendant be able to use that option to leverage a better settlement? And by my reading, this decision only decided whether or not the defendant waived his rights to requesting the records. In other words (and please correct me if I missed this), what's stopping an associate or friend of the defendant from requesting these records? I don't see anything prohibiting the defendant from using records obtained in that fashion. 

A.   I agree with Kevin that a criminal defendant should be able to use FOIA as a bargaining chip in plea negotiations. To Kevin's point about the scope of the waiver, it is true that a third party may submit a request and then provide any disclosed records to the criminal defendant.  But keep in mind that in response to a third party request, DOJ would be compelled to withhold certain records, or to refuse to confirm or deny their existence, on privacy grounds.  Thus, the waiver does have some teeth.   

R.  Kevin's insight brings us back to one of the dissent's major points: Price knowingly, voluntarily, and intelligently consented to the terms of his plea agreement.  Any criminal defendant should be able to do the same in negotiating the terms of his agreement.  Kevin's comments also reminded me of Judge Brown's reference to "surrogate" requesters.  I think Allan is right that DOJ would withhold records, or issue a Glomar, on privacy grounds.  Moreover, if a request contained a Privacy Act waiver, I bet DOJ would refuse to accept it as valid.  It would instead treat the request as a creative attempt to get around the terms of the plea agreement.  The burden would then be on the requester to prove otherwise.

K.  Re-reading the decision and what sticks out is how the government apparently left this key point out of their briefs but discussed it at oral arguments: "Prisoners frankly have a lot of time on their hands and they write a lot of FOIA requests, and it is a burden to agencies especially like the FBI."  That would seem to be a key, if crude, point in the government's favor. Considering the court left in place the arbitrary "criminal justice interest" standard, I suspect the government won't hesitate to include some of the missed points from this case the next time around.

Commentary: Special Counsel records

For future requesters who might be interested in the records generated by Special Counsel Robert Mueller, who was appointed by DOJ yesterday to oversee an investigation into Russian contacts with the Trump campaign, the following FOIA case involving former Special Counsel Patrick Fitzgerald's investigation into the Valerie Plame affair might be instructive:  Citizens for Ethics & Responsibility in Wash. v. DOJ, 658 F. Supp.2d 217 (D.D.C. 2009).    

In sum, the court held that DOJ properly withheld certain records pursuant to Exemptions 1, 3, 5 (deliberative process privilege), 6, and 7(C), but that it failed to demonstrate the applicability of Exemption 7(A) to "specific ongoing or reasonably anticipated law enforcement proceedings."  Requesters seeking Mueller's investigatory records will likely have to wait years, like CREW, until the government's investigation and any anticipated law enforcement proceedings moot Exemption 7(A).   

Commentary: DOJ's summary of FY 2016 annual reports

Yesterday DOJ's Office of Information Policy released its summary of agencies' fiscal year 2016 annual FOIA reports.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- share their observations.

A.    A good deal of this data was made available by DOJ six weeks ago, which I am happy to revisit, but I'll start by pointing out several new items that initially caught my eye.  The bad news first:  the average time to process "simple" requests skyrocketed by nearly 22 percent (p. 12).  And a pet peeve of mine: the government continues to ignore consultations that agencies have with the White House (p. 14).  Some good news: the average time to process administrative appeals decreased by 30 percent (p. 17).  

R.    The data on exemptions are interesting (pp. 7-8).  Exemptions 7(C) and 7(C), taken together, accounted for over half of all instances of redaction (27.87% and 23.64%, respectively), and Exemption 6 was the single most cited exemption (29.90%).  Use of Exemption 5 (8.53%) only slightly increased from FY 2015, but that's still way down from FY 2013 and FY 2014 levels.  Of course, I'm not sure whether any of this really tells us anything about how agencies are actually processing responsive records though.  The use of Exemption 6, for example, to withhold information such as personal phone numbers or portions of email addresses likely skews things a bit.  Nearly every agency record has some uncontroversial (b)(6) material that is withheld.  If we were just looking at the redaction of the sort of substantive information most requesters are trying to get, I expect the use of Exemption 5 would skyrocket.  I'd also be interested to know, with respect to Exemption 5, which privileges have been cited and how frequently.

Some other thoughts: I'm amazed that NARA is processing all of the "ten oldest pending requests," which date from between 1993 and 1998 (p. 11).  Also, I agree with Allan about the deficiency of the discussion of consultations (pp. 14-15).  There's some ambiguity, I think, in what the reported numbers represent.  It'd be better for agencies to report how many consultation requests have been sent out and returned, and to whom they were sent, rather than account for how many were received and "processed."

K.    Disappointed that litigation-related costs as a percentage of FOIA has remained constant since FY 2009 at about 7% (p. 19). The "presumption of openness" and the increase of proactive disclosures noted on p.19-20 don't seem to be having an effect on litigation, although 85% of the proactive disclosures are from NARA. 

If agencies received 6,159 consultations in FY 2016 (p. 14), how many consultation requests did the White House receive and how many of those overlap with the consultations noted in this report? Thoughts? 

A.   The existence of OGIS also apparently has not driven down the percentage of litigation costs either, Kevin, though it is fairly powerless to prevent lawsuits based on the agency's failure to timely process a request.  Unrelated,  I want to briefly raise the statistic touted by DOJ that the government has a 91 percent "release rate" (pp. 5-6, 19).  This does not mean that the government released records in response to 91 percent of all requests filed.  Rather, it means that when the government actually processed records in response to a request (approximately 63 percent), the government released at least a portion of at least one page.   So it is not the most meaningful measurement of the government's transparency.

R.    That's a good point about the 91% "release rate," Allan.  And I can imagine that a fair number of requests in the "Released in Part" category on page 6 resulted in production of records that had most meaningful content withheld.  On a separate note, I was disappointed to see the FOIA backlog increase by nearly 12% (pp. 9-10).  I suppose between the loss of momentum from the Obama Administration's efforts to decrease the backlog, on the one hand, and the deluge of requests pouring in about Clinton and Trump, on the other--not to mention limited agency resources--an increase was inevitable.  I can't say I'm optimistic for the coming year.

K.    The 91% "release rate" has long been criticized by the FOIA community, including by the National Security Archive in its newsletter today:

The figure is disingenuous because, as Archive Director Tom Blanton told the Senate Judiciary Committee in 2015, “The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming ‘no records,’ ‘fee-related reasons,’ and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.”

I'll end with a wish list for the FY 2017 summary:

1. Stop using the disingenuous "release rate"
2. Start including data on White House consultations 
3. Include more specificity on Exemption 5

Commentary: FOIA Search Survey

Last week, the National Security Archive (NSA) and the Project on Government Oversight (POGO) published the results and analysis of their survey of agency FOIA personnel and requesters about the search process.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.

A.  A useful survey and I largely agree with NSA and POGO's conclusions.  If I were to quibble about anything, it would be with the following paragraph:

Unfortunately, statistics show extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.”  But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches.  Administrative appeals often result in a second, more thorough search that finds the documents requested.

Based on my experience as both agency counsel and a requester, I do not believe that the percentage of no-record responses is "extremely large."  And I would say that "some," not "many" of those responses are due to inadequate searches. Similarly, I would say that appeals "sometimes," not "often," result in the discovery of additional requested records.  In the absence of hard facts, of course, we'll have to agree to disagree about which adjectives are more appropriate.    

R.  One of the shortcomings of the survey is its small sample size: 57 responses, of which only 30 were from processors.  Considering the bulk of the analysis centers on what agencies are doing, I'd have liked to see more input from the government.  Otherwise, I agree that the conclusions are generally good.  

The lack of government-wide guidance on how, precisely, an agency should conduct a search is one source of a lot of the identified problems.  But that's probably unavoidable so long as agencies have varied infrastructures.  Consider the IRS.  In my experience, the IRS tries to avoid searching e-mail, for example, because it doesn't allow employees to self-search (at least, that's what IRS FOIA officers have told me).  The alternative approach requires a lot of time and labor investment.  The IRS also complains that it lacks modern hardware and software.  Such technological limitations have a real impact on how the FOIA is implemented, especially in an increasingly high-tech world.

As for the "no records" issue, agencies regularly tell me that they don't have any responsive records.  I'm sure that many of these responses reflect a good faith search.  A few of them, however, may be based on a reluctance to deal with complex or politically sensitive requests.  That many agencies rely on components or employees to actually carry out a search only facilitates such poor efforts in a limited number of cases.  I've also found it common for an agency to tell me that it has a large number of potentially responsive records, but then produce hardly anything once the review process is done.  Maybe the agency is erring on the side of being over-inclusive during the search process, but that just raises a different type of inefficiency.  Finally, on a related note, I imagine a small number of requests are rejected as invalid or imperfect because an agency simply considers it difficult, as a practical matter, to conduct a search.  I realize, though, that there may be a fine line between a complex request that requires a difficult search and an "unreasonably burdensome" request.

Here's one recommendation that wasn't in the survey: requesters and agencies should do a better job at talking to one another.  Communication allows everybody to clarify the scope of the request, to identify expectations, and to understand an agency's limitations.

K.  Considering the lack of uniform guidance on searches, a 16 percent "no responsive records" doesn't seem high to me either. That said, I think when you include that 16 percent with those instances where an agency gives you a couple of emails or documents at you just to close the request, that's where the "extremely large" would be found.

If you look at the survey responses to FOIA software, the lack of technology use for conducting searches is pretty stunning with 25 percent not using any software and 7 percent "not sure."  I'm not sure which technology is best (the survey lists the software used, like FOIAOnline), but I'd wager that solving the technological limitations within agencies would be the best way to improve FOIA for processors and requesters. 

Commentary on Sunshine Week

With Sunshine Week ending on March 18, the staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- share observations on the week's events. 

A.  The highlight for me was the release of Max Galka's analysis of FOIA users, which seemed to be the most retweeted FOIA item of the week.  A shame that the House hearing on transparency was postponed, but the Senate Judiciary Committee stepped up by issuing information requests to OIP, OGIS, and OMB.  I had expected OIP to issue its summary of annual FOIA reports, as it usually does during Sunshine Week, but at least the 2016 data was available on FOIA.gov.  Speaking of FOIA data, next year I think we might see the total number of requests approach or topple 900,000.  Bets anyone?

K.  There were 788,769 requests in FY 2016 according to FOIA.gov.  With the increase in requests from the likes of the ACLU, environmental groups, and MuckRock users, I'd take the over on 900,000.  In 2017, I'd also take the over on the AP report that the Obama administration spent $36.2 on legal costs for FOIA cases in FY 2016.  

R.  I agree with Kevin.  The Obama Administration saw an uptick in public interest in the FOIA, undoubtedly due in part to its poor record on transparency, but I think the Trump Administration will witness an even more significant growth of requester activity and bolder efforts to frustrate disclosure at the agencies.  I had hoped that DOJ-OIP would provide the public with an update of the "release to one, release to all" guidance.  Maybe it will be included in the forthcoming agency "toolkit"?  

Senate Judiciary, as we reported a few days ago, is also interested in the status of that guidance.  I'm hoping this means that further FOIA reform is a possibility in the new Congress.  There's certainly more that could be done to follow-up on last year's FOIA Improvement Act.

A.  Congress typically does not take up FOIA legislation in successive years, but since House Oversight was at least interested enough to schedule a hearing, you might very well get your wish, Ryan.  In the meantime, the majority of agencies haven't even updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016, as the National Security Archive reported earlier last week.  And we're still waiting for DOJ to repeal and replace Attorney General Holder's 2009 FOIA memo.   

K.  I thought MuckRock's FOIA March Madness 2017 was a pretty interesting take on the usual agency response time FOIA project.  We'll have to keep an eye out on how that turns out.  The bad news from last week was a District Court decision that said the Office of Science and Technology Policy was not required to search the private email account of their former policy director despite the presence of work-related emails.  I'm sure Ryan has plenty to say on that.

R.  Indeed, Kevin.  I've published a blog piece on the recent developments in the district court.  Judge Kessler's consideration of CEI's metadata argument is simply wrong.  Certain types of metadata can form an integral part of an electronic record and, accordingly, should be disclosed under the FOIA.  If former Director Holdren's work-related email records contained integral metadata that didn't transfer over to the duplicate copies on OSTP's servers, then I don't think the agency should be able to avoid searching that Woods Hole account.  The district court's ruling really takes some of the bite out of the D.C. Circuit's important decision.

Commentary on draft "Release To One, Release To All" policy (Part II)

This post is continuation of a discussion among the FOIA Advisor staff about the Department of Justice's proposal to electronically publish records that have been processed in response to a single FOIA request -- a policy that would exceed the statute's requirements.   

A.  Ryan, your concerns about the "good cause" exception are not entirely unwarranted, though my general sense is that we should take heed of the expression "never look a gift horse in the mouth."  And I do not object to DOJ's court-endorsed reliance upon a "mosaic" approach to harm.  On another topic, I'll be interested to see how diligently DOJ enforces whatever policy is adopted -- that is, assuming the incoming Administration lets it go forward.  Before the passage of the FOIA Improvement Act of 2016, at least one agency -- namely the Consumer Financial Protection Bureau -- outright refused to abide by DOJ's "rule of three."  Indeed, CFPB failed to create a FOIA electronic reading room until 2016, five years after it formally began operations.  Sad!

K.  I think Allan's point might be the most important one. Our previous discussion about the aspects of this may just be putting the cart before the horse. The draft guidance says this on implementation: "1) the agency commits to fully posting at least some portion of their eligible FOIA-processed records by March 31, 2017, and 2) the agency commits to steady increases over time in the numbers of the records posted."  

It's very vague and doesn't include any measurable statistics to follow up on progress over time. The date for committing to following the policy at least in part is coming fast. For some of the busier agencies dealing with FOIA, this is a huge technological lift if they don't have a system already in place. What are the odds we see much progress by April 1, 2017?

R.  Good points.  I agree about the vagueness and lack of metrics, Kevin.  As Allan intimated, I think it'll come down to how the new Administration approaches the FOIA.  There hasn't been any shortage of speculation about President-elect Trump's position on transparency issues.  Perhaps he and his Attorney General will issue memoranda in the coming weeks to set the tone for the next four years, just like their immediate predecessors.  I wouldn't be surprised if any final "release to all" guidance were delayed.  And then there's still the enforcement issue that Allan also mentioned.  Unless this proposed presumption is codified (which is very unlikely), DOJ is only going to be as successful as it is persuasive.  DOJ's pilot included components at some of the major agencies--EPA, DHS, DOD, NARA, etc.--so hopefully they and others have been working on the necessary infrastructure in the background and won't delay working towards 100% implementation, assuming the White House doesn't slow things down.