FOIA News: Update on FOIA reform legislation

FOIA Reform Appears Close, But Not a Done Deal

By Charles S. Clark, Government Executive, Apr. 22, 2016

Bipartisan bills aimed at strengthening the openness requirements of the Freedom of Information Act are heading into House-Senate negotiations, but not without exposing some long-standing trepidation inside the Obama administration.

Though White House spokesman Josh Earnest has said the president would sign the Senate version of the bill passed last month, the measure the House passed in January has some stricter requirements that need to be negotiated. Nothing is guaranteed: In the past Congress, FOIA reform bills also cleared both chambers, but then-Speaker John Boehner, R-Ohio, declined a floor vote.

In addition, a coalition of 47 transparency advocacy nonprofits last month wrote a letter to the White House expressing displeasure with some Justice Department objections to the earlier bills, which only recently came to light under—of all things—a FOIA request.

The goal of the legislation is to require agencies to operate under a “presumption of openness” when considering the release of government information under FOIA and curb “overuse of exemptions to withhold information from the public,” according to Sen. Patrick Leahy, D-Vt., a longtime advocate. The bills would enhance the ability of the Office of Government Information Services—run out of the National Archives and Records Administration—to help mediate FOIA disputes. 

Read more here.

FOIA News: MuckRock identifies FOIA's environmentally unfriendly agencies

FOIA's worst environmental offenders
Our Earth Day round-up of the most wasteful agencies in public records

By JPat Brown, MuckRock, Apr. 22, 2016

As I am happy to tell anyone who will listen, and several more who won't, envelopes are the worst part of working at MuckRock. They say nothing that couldn't have been said in email, they're infuriatingly time consuming to scan and process, and you have to take them seriously in case somebody snuck a “respond to this in five days or we'll close your request immediately” letter in something post-marked six days ago. They exist soley to contribute as little as possible and then be cataloged. They are the quantum particles of pointless bureaucracy.

They're also a huge waste – in an age where we are routinely asked to not print things if we can help it, government agencies see nothing wrong with single-siding off a few thousand “yeah, still working on it” letters and cramming them in a mailbox at fifty sense of postage a piece.

So, in the spirit of Earth Day, we decided to fight back - we ran through the stats to identify FOIA's worst wastrels, and now we're ready to engage in a healthy bit of envelope shaming. System's simple - we checked out which agencies had sent us the most mailed communications (MCs), and that ran that against the number of total requests we've received.

Read more here. 

Court opinion issued April 20, 2016

Schotz v. U.S. Dep't of Justice (D.D.C.) -- finding that the Federal Bureau of Prisons (BOP) and the Executive Office of U.S. Attorneys performed adequate searches in response to inmate's ten requests; further finding that BOP properly redacted certain telephone numbers pursuant to Exemption 7(C).  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: OGE to provide tips on releasability of ethics documents

On April 21, 2016, the U.S. Office of Government Ethics will broadcast a training session on three laws that govern the release of ethics documents: the Freedom of Information Act, the Ethics in Government Act, and the Privacy Act. Watch the live stream here at noon.  

Court opinion issued April 18, 2016

Harvey v. Lynch (D.D.C.) -- denying plaintiff an award of costs after determining that his lawsuit was not the catalyst for the release of records by the Federal Bureau of Prisons; rather, the court found that BOP initiated its search shortly after receiving the request and that its delayed response was due to limited resources and the agency's first-in/first out policy for processing requests.  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Recap of FOIA Advisory Committee meeting

Government only as transparent as its technology, advocates say

By Bianca Spinosa, FCW, Apr. 19, 2016

The National Archives and Records Administration's Freedom of Information Act Advisory Committee met in Washington on April 19, and called for several reforms to ensure the FOIA process better serves the public interest.

Committee members voted to ask the Office of Management and Budget to update its fee guidelines for FOIA requests, last changed in 1986. They also passed several motions aimed at bringing FOIA processes into the 21st century, including allowing agencies to release requested documents via email and recognizing online media as media sources.

The committee also hosted Margaret Kwoka, an assistant professor at the University of Denver Sturm College of Law, who shared her research on the commercial use of FOIA at six federal agencies. In a paper titled  "FOIA, Inc.," Kwoka argued that corporations have overrun FOIA processes at some agencies, clogging the system and "crowding out" journalists and other government watchdogs. Her report urges agencies to affirmatively disclose records that are routinely requested through FOIA.

Kwoka's research seemed to resonate with the committee, which was established in 2013 as part of the United States' second Open Government National Action Plan.  "It really changed my mindset," committee chair James Holzer said of the study.

Committee member Clay Johnson, a former Presidential Innovation Fellow and founder of the Department of Better Technology, also applauded Kwoka's critiques, and said dated technology is at least partly to blame for FOIA's shortcomings.

"I came to the conclusion that government can only be as transparent as its technology vendors will allow for it to be," he said.

Read more here. 

Q&A: A Blue Ridge mountain of fees?

Q.  Can our West Virginia county charge a fee for the time it takes to gather the information in a FOIA request, as well as a fee for printing the materials?

A.    Section 29B-1-3(e) of the West Virginia Freedom of Information Act provides that a public body "may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records.  A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records."

Court opinion issued Apr. 15, 2016

Freedom Watch v. U.S. Dep't of State (D.D.C.) -- on remand from the D.C. Circuit, ruling that the State Department conducted an adequate search of Hillary Clinton's emails for documents relating to a type of sanctions waiver the U.S. State Department granted to certain countries doing business with Iran.  The court pointed out that plaintiff's arguments in opposition to the agency's search had been raised and rejected in earlier briefing, prompting the court to criticize plaintiff for ignoring its prior opinion and for submitting "sloppy work."  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Obama’s Secrecy Problem

Obama’s Secrecy Problem

By Fred Kaplan, Slate, Apr. 15, 2016

When FOIA was passed in 1967—and strengthened in 1974—the law’s language required agencies to respond to requests for information within 10 business days. This was always a preposterous standard, and so the rule was extended to two months, which was also stretched, understandably so. But now the FOIA offices move at a snail’s pace, with requests routinely taking many months—and often a couple years—to process. (Requests for Mandatory Declassification Reviews, another method of unlocking data, take on average 224 days; when the requests are denied, appeals take, on average, another 296 days.)

To some degree, this is because of the crushing caseload in FOIA offices. Since Obama’s first year as president, annual requests for information have risen by 45 percent—from 500,000 to 715,000. Had Obama made FOIA the high priority that he signaled on his first day as president, he could have requested money to hire more FOIA personnel. Yet over this same period, the level of personnel has risen by only 3 percent, from 4,000 to 4,121. No wonder, then, that the backlog of cases has also swelled by 45 percent—from 70,777 to 102,828.

But the growing caseload isn’t the only reason for the slowdown. If the agencies had taken Obama’s 2009 memo seriously, they could have dealt with the burden by adopting a presumption to disclose. But they haven’t. In fact, agencies have grown more hostile to FOIA and they’ve been egged on in their resistance by the Department of Justice. In 2014, Congress was about to enact reforms that would have required agencies to loosen their strictures, but the Justice Department’s Office of Information Policy lobbied against the measures. Anne Weismann, a former Justice Department official, now at the nonprofit Campaign for Accountability, told me, “OIP sees their role as protecting agencies from intrusion.” Internal memoranda that Vice senior investigative reporter and information activist Jason Leopold obtained, ironically, under the Freedom of Information Act, confirmed the claim.

Read more here.

FOIA News: US refuses to release records on Chinese companies linked to deadly fentanyl trade

US refuses to release records on Chinese companies linked to deadly fentanyl trade

By David Armstrong, STAT, Apr. 18, 2016

US customs officials are refusing to release records related to two Chinese companies linked to an explosion of fentanyl overdoses unless the companies give their permission — a stance called astonishing by an expert on public records.

STAT requested US government records related to the companies through a Freedom of Information Act request earlier this month. The information sought included any records documenting violations of US law by the companies; sanctions or restrictions placed on the companies; reports detailing products exported to the United States by the companies; and any investigative reports.

In response, the US Customs and Border Protection agency instructed STAT to resubmit its request with statements from the companies “authorizing that their information may be accessed, analyzed, and released to a third party.”

Read more here.