FOIA Advisor

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Commentary on Sunshine Week

Commentary (2017)Allan BlutsteinComment

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.