FOIA News: FOIA Food Fight

Where's the Beef? You Won't be Able to Find out if Agricultural Groups Get Their Way

Beef, egg, and milk producers behind campaigns like “Got Milk” want to be exempt from FOIA requests

By Beth Kowitt, Fortune, May 2, 2016

A number of prominent agricultural commodity groups have successfully pushed for language to be included in the pending 2017 House Agricultural Appropriations Bill that “urges” the U.S. Department of Agriculture to exempt their respective promotional groups from Freedom of Information Act (FOIA) requests, which make otherwise-private government records available to the media and other organizations.

These promotional and research boards, funded by agricultural producers, market their commodities, in some cases with memorable slogans (think “Got Milk” or “The Other White Meat”). The USDA’s Agricultural Marketing Service oversees these programs, which are known as “checkoff programs” because fees to pay for them are automatically assessed to every producer.

The language in the bill, which is awaiting action by the House, makes the case that the research and promotion boards are neither agencies of the federal government nor funded by federal funds and therefore should not be subject to FOIA requests.

On April 11, 14 commodity groups—including the American Beekeeping Federation, the American Mushroom Institute, the National Cattlemen’s Beef Association, the National Christmas Tree Association, the National Milk Producers Federation, the National Pork Producers Council, the National Potato Council, the National Watermelon Association, and United Egg Producers—wrote a letter to the heads of the House’s subcommittee on agriculture pushing for the change.

The commodity groups argue in the letter, which was obtained by Fortune, that since they reimburse the USDA for costs related to USDA’s oversight, including FOIA requests, the change would “help ensure that producer resources are focused on research and promotion activities.”

Read more here.  

Q&A: Retaining FOIA files in Michigan

Q.  How long does a [Michigan] township need to retain FOIA documents?  

A.  The retention of Michigan records is governed by approved schedules issued by the Department of Technology, Management and Budget (DTMB).  State government agencies are required to maintain a FOIA file for one year after its creation.  See General Schedule #5.06.  The General Schedule #10 for Michigan Townships does not appear to include an agency-wide retention period for all FOIA files.  The retention schedule for FOIA files for Township Clerks and Township Treasurers, however, are both one year from date of creation.  Therefore, I suspect that the same period is likely to apply to your agency.  To confirm, I recommend that you contact DTMB's Records Management Services at (517) 335-9132.  

FOIA News: Congress asks GAO to conduct FOIA inquiry

Congress requests GAO investigation into federal FOIA shortcomings

By Alex Howard, Sunlight Foundation, Apr. 29, 2016

On April 28, the leaders of the U.S. House Committee on Oversight and Government Reform and the U.S. Senate Committee on the Judiciary sent Gene L. Dodaro, the U.S. comptroller general, a letterrequesting the General Accountability Office (GAO) conduct a comprehensive review of the federal government's compliance with the Freedom of Information Act.

The Freedom of Information Act (FOIA) is a vital tool that protects one of the cornerstones of our Nation: the American public's right to know what its government is up to. Given FOIA's importance, effective and complete implementation of its statutory requirements is necessary to ensure that the public can exercise its right to know.

Requesters repeatedly report to Congress the problems they have encountered with the FOIA process. These problems include indefinite delays, excessive redactions, and other unnecessary barriers to accessing information. According to a recent report, people who sought records under FOIA in Fiscal Year 2015 received censored files or simply nothing at all in response to 77 percent of all requests—a record high, according to the Associated Press. During the same period, the number of FOIA lawsuits filed in federal court reached an all-time high. These are troubling statistics that warrant further investigation into how, and the extent to which, the federal government responds to FOIA requests.

The authors of the letter — Reps. Jason Chaffetz, Elijah Cummings and Darrell Issa along with Sens. Charles Grassley, Patrick Leahy and John Cornyn — requested that the GAO produce reports on the following topics:

Read more here.

Court opinion issued April 27, 2016

Airaj v. U.S. Dep't of State (D.D.C.) -- ruling that the agency conducted a reasonable search for records pertaining to plaintiff's application for a special immigration visa, and that it properly withheld certain records pursuant to Exemption 3 (in conjunction with the Immigration Nationality Act) and Exemptions 6 and 7(C).   

Summaries of all opinions issued since April 2015 available here. 

FOIA News: OGIS addresses "still-interested" letters

FOIA 'still interested letters' have uncertain effect on requesters, report finds

By Stephanie Kanowitz, FierceGovernmentIT, Apr. 28, 2016

Sending a so-called "still interested letter" to someone who requested responses under the Freedom of Information Act, or FOIA, has an uncertain effect, an analysis found.

It's tough to measure these letters' effect on requesters, found part 1 of a study (pdf) by the Compliance Team at the Office of Government Information Services, or OGIS, on the use of such letters by the 15 Cabinet-level agencies between fiscal years 1998 and 2014, according to an April 27 blog post by the National Archives' FOIA ombudsman.

That's due, in part, to the fact that no guidance or standard for reporting requests closed using the letters exist.

"'Still interested' correspondence is a letter or an email that an agency sends to a FOIA requester asking if the requester remains interested in the requested records despite the time that elapsed since the request was filed," according to the report. "These letters are generally sent to the requester a significant amount of time after the FOIA request is made and inform the requester that if he or she does not indicate interest within a certain time, the agency will not process the request and will administratively close it."

Sometimes this letter is the first communication that an agency has with a requester, according to the report. "These letters can give the appearance to requesters – particularly frequent savvy requesters – that an agency's FOIA process does not work," it added.

Read more here.

Court opinion issued Apr. 26, 2016

Bagwell v. U.S. Dep't of Educ. (D.D.C.) -- ruling that agency properly withheld certain compliance records and correspondence pertaining to Penn State University pursuant to Exemptions 6, 7(C), 7(E), and 3 (in conjunction with the Higher Education Act of 1965, 20 U.S.C. § 1099c-l).  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Gizmodo Reporter Obtains White House Photos from 1990 Hunt for Red October Screening

The White House Screening of The Hunt For Red October Had Celebrities, Spies and (Maybe) a Sex Scandal

By Matt Novak, Gizmodo, Apr. 26, 2016

President George H. W. Bush hosted a star-studded screening of The Hunt for Red October at the White House on February 19, 1990. The guests included everyone from Tom Clancy and James Earl Jones to the CEO of Paramount and Colin Powell. Robert Gates was there, as was the director of the CIA, and men from the highest ranks of the Navy. But there are some guests who still remain a secret, even to this day.

I obtained photos of the movie screening through a Freedom of Information request to the George Bush Presidential Library. And the photos that have been withheld are nearly as interesting as the photos I got.

It’s sort of a surreal event to imagine, in retrospect. The Hunt for Red October, based on Tom Clancy’s 1984 book of the same name, is notable for being the last American film produced about the Cold War during the Cold War. And this gathering of Hollywood elites and the National Security establishment could almost be seen as both a victory lap for the Cold War and a pre-game meeting for the first Gulf War.

Read more here.

FOIA News: Pentagon's frequent requester revealed

DoD's FOIA 'spammer' steps forward

By Fred Donovan, FierceGovernmentIT, Apr. 26, 2016

Following a Department of Defense report decrying a heavy volume of Freedom of Information Act, or FOIA, requests from a single individual, that requester has stepped forward.

Nick Turse, a contributing writer for The Intercept, wrote in an April 20 piece that he's the requester who has filed 415 in the past two years and 308 so far this year.

At least Turse thinks it's him – he got support for his claim from another frequent filer.  But Turse wrote that when he tried to ask DoD's chief FOIA officer, Peter Levine, the official behind the "Chief Freedom of Information Act Officer Report to the Department of Justice" that laments the heavy filing volume, he was bounced around, unable to get anyone to respond.

The report, which cost DoD $41,449 to produce, largely lauded the department's openness efforts, but it said that heavy volume from one requester is a burden because the person tries "to monopolize the system by filing a large number of requests or submitting disparate requests in groups which require a great deal of administrative time to adjudicate."

Turse takes issue with that accusation, stating that Levine has never asked him why he files so many requests.

Read more here.  

FOIA News: Congressional Research Service compares FOIA bills

On April 21, 2016, the Congressional Research Service issued a report that provides a side-by-side comparison of the FOIA bills passed by the Senate and the House.  The report also "provides context related to bill amendments and language additions that occurred between bill versions, when applicable.  Finally, the report provides analysis of certain provisions of the bills." 

Court opinions issued Apr. 21-22, 2016

April 22, 2016

Behrens v. U.S. Attorney (D.D.C.) -- ruling that the government's search was inadequate because the Executive Office of U.S. Attorneys failed to search plaintiff's criminal case file for a court order issued in related civil case involving plaintiff and the Securities and Exchange Commission.

April 21, 2016

Am. Civil Liberties Union v. DOJ (D.C. Cir.) (unpublished opinion) -- affirming lower court's decision that the CIA properly relied upon Exemption 1 to withhold records related to the United States’ use of armed drones to conduct “targeted killings.”

Summaries of all opinions issued since April 2015 available here.