FOIA Advisor

FOIA News: OGIS to host open meeting on May 18

FOIA News (2018)Allan BlutsteinComment

Don’t Miss Our Second Annual Open Meeting: May 18, 2018

Nat'l Archives & Records Admin., OGIS Blog, Apr. 25, 2018

Registration is now open for our Second Annual Open Meeting on Friday, May 18, 2018 from 10:00 a.m. to noon in the William G. McGowan Theater at the National Archives.

The purpose of the meeting is to provide the public with an update on OGIS’s activities, and give interested persons an opportunity to present oral or written statements. During the meeting, Director Semo will highlight our work and observations during Fiscal Year (FY) 2017, and discuss our plans for the remainder of FY 2018. We will also have a panel discussion about the recently-passed recommendations of the FOIA Advisory Committee, after which we will open the floor for public comments.

If you have thoughts to share about our work but cannot join us in person, we encourage you to submit a written statement to ogis@nara.gov. You can also watch all of the action via the livestream on NARA’s YouTube Channel, and use the comment function to share your views.

Be sure to check out our Annual Open Meeting webpage to see the meeting’s agenda and other materials as they become available.

Q&A: Is there anybody out there?

Q&A (2018)Allan BlutsteinComment

Q.  I sent a FOIA request to an agency in Illinois and it is has completely ignored the request.  What can be done?  Can I get any relief and/or financial compensation?

A.  If you believe that an agency has violated the Illinois FOIA, you might consider asking the Attorney General's Public Access Counselor to review your request.  The instructions for submitting such a request are available here.  There are three ways that the PAC may resolve a request for review:

(1) Decide that no further review is necessary.  If the PAC decides that the alleged violations of FOIA are unfounded, the PAC will advise the requester and the public body of that decision. The PAC will not conduct any further review. 

(2)  Work to resolve the FOIA dispute with the public body. (5 ILCS 140/9.5(f)) The PAC may choose to mediate the dispute or resolve the matter by means other than the issuance of a binding opinion. The PAC’s decision to refuse to issue a binding opinion is not reviewable.

(3) Issue a binding opinion.  The PAC will review any information needed to analyze the FOIA dispute and any additional information that the requester or the public body provides. If the PAC decides to issue a binding opinion, the PAC must issue that opinion within 60 calendar days after receiving the Request for Review. The PAC may extend the 60-day time period by 21 business days by sending a written notice to the requester and the public body, and must include the reasons for the extension

For more information about this review process, see pages 5-8 of the following guidance.  

I do not believe that the Illinois FOIA allows requesters to recover damages for an agency's failure to produce documents.  The federal FOIA, upon which the most state public records laws are modeled, does not.  You should, however, consult with an attorney licensed in Illinois if you are interested in obtaining legal advice about the state statute. 

Court opinions issued Apr. 23, 2018

Court Opinions (2018)Allan BlutsteinComment

Castleman v. DOJ (9th Cir.) (unpublished) -- affirming district court's decision regarding plaintiff's multiple requests concerning his criminal trial because plaintiff failed to raise genuine disputes of material fact regarding government's searches or withholdings under Exemption 7(C).

Prop. People v. DOJ (D.D.C.) -- in case concerning Donald Trump's interactions with FBI before he became President, ruling that agency had "not yet justified its sweeping Glomar response for two categories of responsive records: (1) non-investigative records related to Donald Trump and (2) records that mention Trump 'in the context of his official capacity as chief executive of specific organizations'  Further, the court ruled that FBI "may at least issue a narrow Glomar response as to most law-enforcement records."

Jarvis v. SSA (D.D.C.) -- finding that: (1) plaintiff was required but failed to file an administrative appeal concerning his request for disability decisions based on race or immigration status; and (2) SSA sufficiently demonstrated that it does not maintain the requested records.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Bench trial begins on egg farm inspection reports

FOIA News (2018)Allan BlutsteinComment

Withholding of Egg Data Challenged in Rare FOIA Trial

By Nicholas Iovino, Courthouse News Serv., Apr. 19, 2018

Revealing details about the living conditions of hens would give business rivals an edge and irreparably harm small egg producers in Texas, an egg company executive testified Thursday on the first day of a rare Freedom of Information Act bench trial.

“That information will give a competitor a pretty good indication of what our cost of production is and also what our capacity is,” said David Elbel, president of Feather Crest Farms, based in Bryan, Texas.

Elbel was the first witness in a rare bench trial over whether the U.S. Food and Drug Administration can exclude details from Texas egg farm inspection reports on the number of hens and hen houses along with cage rows, tiers and floors per hen house.

Read more here.

FOIA News: EPA to review FOIA requests for Pruitt emails

FOIA News (2018)Allan BlutsteinComment

EPA checking if all of Pruitt's email accounts were included in FOIA responses

By John Siciliano, Wash. Exam'r, Apr. 19, 2018 

The Environmental Protection Agency is reviewing all of its Freedom of Information Act responses under Administrator Scott Pruitt to ensure that they included all four of Pruitt's email accounts.

Steven Fine, the EPA's deputy chief information officer, told Environment and Public Works Committee Chairman John Barrasso, R-Wyo., in a letter released Thursday that the agency's long-held policy is to search all emails, secondary or otherwise, in responding to FOIA and congressional requests.

Nevertheless, Fine said the agency will conduct a review of all searches made in response to FOIA requests as long as Pruitt has been head of the agency.

Read more here.

FOIA News: FOIA Advisory Committee approves 37 recommendations

FOIA News (2018)Allan BlutsteinComment

FOIA advisers push for more proactive disclosure

By Chase Gunter, FCW, Apr 18, 2018

A federal advisory committee finalized a series of draft recommendations for the National Archivist and agencies to improve management of the Freedom of Information Act.

The FOIA Advisory Committee approved 37 recommendations for agencies to implement, 23 of which cover the topics of process management and proactive disclosure.

Agencies were advised not to remove legally posted documents already on agency websites, to improve communication with requesters, train FOIA professionals to manage records and use metrics such as case closures, pages reviewed and quality requirements as part of employee performance evaluations.

Read more here.

FOIA News: OGIS announces dispute resolution training

FOIA News (2018)Allan BlutsteinComment

Time to Register for Our May 8th Dispute Resolution Skills Training Session!

Nat'l Archives & Records Admin, OGIS Blog, Apr. 18, 2018

Registration is now open for our May 8 Dispute Resolution Skills for FOIA Professionals training session. Space is limited and seats fill up fast, so make sure you act now to reserve your spot for this free training! We ask that you register with your government email address and tell us your agency—we want to know where you are coming from.

This training is intended to teach FOIA professionals practical communication skills to help them understand and resolve disputes–a skill that can help you improve communication with not just FOIA requesters, but also with your agency colleagues, and even your friends and family. We also give training participants a chance to test drive their skills and fine tune their approach through activities and a role playing exercise.

We can also offer agency-specific training. If you are interested in having us conduct a training session for your staff please contact Carrie McGuire at carrie.mcguire@nara.gov.