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.

Commentary on draft "Release to One, Release to All" policy (Part I)

The U.S. Department of Justice solicited feedback last month on a draft release policy concerning FOIA-processed documents.  This followed a six-month pilot program in 2015 and an assessment by the Chief FOIA Officers Council in the latter part of 2016.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.  

A.    I was able to submit a public comment just before the deadline, so I'll do my best Bill Belichick impression by deferring and kicking it off to you, Kevin and Ryan.  

K.    I had originally thought that the records should immediately be released to the public, but I think I've come around to some sort of waiting period. The main issue with the waiting period, as Allan discusses in his comment, will be the timing. I think whatever is easiest to implement at a minimum of five business days is more than sufficient. Should be interesting to see what sort of method of posting each agency goes with and how much information is provided about the requested records. 

R.    I tend to believe that agencies should try to simultaneously release records to requesters and the public.  Some already do this with FOIAonline.  I can appreciate why a journalist would want a period of exclusive use to avoid another person stealing a potential story, but in the end, I think that concern is overstated.  Assuming agencies can post productions for immediate public access, original requesters will still have the advantage.  They will be in the best position to digest and use the records, either in light of their expertise or the inevitable delay between notice of a production and someone else finding the records online.  Unless an agency has a powerful search tool in its reading room, I doubt it'd be so easy to troll for someone else's "hot documents."  I also don't think the incentive to file requests will diminish.  If anything, releasing to all immediately may spur quick dissemination of information when it is newsworthy or in the public interest.

I'm curious how the policy will intersect with administrative appeals.  Not just anyone will be able to file an appeal based on records that have been "released to all."  That would require a change in the statute.  But if an original requester prevails in challenging some redactions, for example, will an agency be required to update its library of released records?  Or will the records in re-released form only be available to the successful appellant-requester?  I don't believe DOJ has addressed this issue.

A.    Oh, good, we now have something to quibble about.  Congress considered this issue twenty years ago and it declined to extend the electronic posting requirement beyond "frequently requested" records.  That seems sensible because, based on my government experience, a significant percentage of FOIA-processed records are likely to be of interest to very few people other than the requester.  So why expend agency resources to post those records?  To merely reduce the possibility of receiving any future request for the same material?  That is thin gruel to support a simultaneous release policy that threatens to deprive a requester from reviewing FOIA-processed records before "free-riding" competitors.   As I read the government's proposal, nothing would prevent an agency from releasing records to a requester by first class mail and posting those records online on the same day without notice to the requester.  In that scenario, the public conceivably would be able to access requested records before the requester, which defies fairness.  And I would not underestimate the requester community's ability to construct web crawlers that can locate newly posted documents in agency reading rooms.       

I should clarify that I believe all requesters, not only journalists, should be entitled to at least some period of guaranteed exclusive access, even if for just one day.  Why completely ignore the efforts of non-journalists -- often spanning years and at significant monetary expense -- to obtain records that the government has declined to proactively release?  If you value entrepreneurship, "Option 1" of DOJ's draft policy should be a no-go as currently written.  

K.    This goes back to what I said about the technology behind how agencies will be posting the records. If, for example, you can subscribe to an RSS feed like we have here at FOIA Advisor (subscribe for daily email updates at this link) or at MuckRock (feeds to submitted and completed FOIA requests) and have new items sent to your inbox, then it might make more sense to have a built-in waiting period before posting. If the documents are going to be posted in a fashion similar to "frequently requested" records or FOIAonline, then a built-in waiting period won't be as important in my view. FOIAonline has a pretty robust search function, but it would take some work to identify new records on a regular basis. 

R.    While I acknowledge the history of the proactive disclosure requirement, I'd also point out that the FOIA Improvement Act of 2016 has clarified that requirement and codified DOJ's long-standing guidance, namely, that agencies must disclose records that have been requested at least three times or that are expected to become the subject of frequent requests.  I don't think its a huge step from this legal requirement to DOJ's "release to all" presumption.  Unless we entirely reject the draft policy -- which is an approach that Allan's arguments seem to support -- agencies are going to have to bear a new burden in posting most everything they disclose.  It's just a matter of timing.  Option 1 possibly avoids a two-step process that could consume a lot of agency resources.  That being said, I'm not wedded to simultaneous release.  Some of the technological aspects that Kevin highlights could convince me otherwise.  Maybe it'd be easy for agencies to design a delayed disclosure mechanism.  Maybe they will use something like an RSS feed.  I'll admit that Allan has imagined an excellent hypothetical where an agency mails productions to certain requesters while posting them online for the rest of the world to access.  It'd be a great way for agencies to politicize the FOIA and punish journalists or requesters who oppose their policy agendas.

Now, to move away from the timing issue . . .  Am I the only one troubled by this "good cause" exception?  I'm okay with excepting records that cannot feasibly be posted online.  But I'm concerned with the idea that whole categories of records aren't appropriate for "release to all."  The FOIA already allows agencies to withhold materials that pose a risk to national security (Exemption 1), confidential financial information (Exemption 4), personal privacy interests (Exemption 6), law enforcement interests (Exemption 7), or most anything else that could be privileged (Exemption 5). There should be no difference in determining whether information can be disclosed to an individual requester as opposed to the world.  As a nice compromise, I think DOJ should just create a single, straight-forward, and government-wide exception for any record that (1) illustrates or depicts graphic violence, or (2) that appeals to prurient interests, such that we would not want a child to access it.  Everything else should be fair game.

To be continued on Friday, Jan. 13, 2017