FOIA News: Cause of Action Institute: "More needs to be done to fix FOIA"

More needs to be done to fix FOIA

By Alfred J. Lechner, Jr., The Hill, July 6, 2016

Congress periodically updates the FOIA, yet federal agencies continue to find new ways to delay or avoid compliance. For example, although text messages and instant messages involving official government business are records subject to the FOIA, some agencies simply make no effort to store, locate, or search for these records, depriving the public of appropriate information.  Others, such as the IRS, acknowledge that such messages are records subject to the FOIA, and yet do not preserve them long enough for a requestor to seek access to them. Cause of Action Institute has sued the IRS over an agreement it signed with its employee union to destroy instant messages sent between IRS employees. This is a violation of the Federal Records Act and makes FOIA requests for these communications impossible.

Agencies and their employees need to be incentivized to provide greater disclosure and penalized for non-compliance. Agencies should recognize and reward employees who timely produce public records.  Congress should also enact penalties for agency non-compliance by making attorneys’ fees and costs mandatory if a FOIA requester has to sue to obtain records.

Since it was first enacted in 1966, Congress has passed major FOIA reform legislation in 1976, 1986, 1996 and 2007. The current decennial effort to amend the FOIA, while a welcome demonstration of congressional bipartisanship to promote Executive Branch transparency, is a missed opportunity to fix many longstanding, fundamental problems. Hopefully, the political will to solve these problems will manifest in time for the “FOIA Improvement Act of 2026.”

Read more here.

Court opinions issued July 5, 2016

Competitive Enterprise Inst. v. Office of Sci. & Tech. Policy (D.C. Cir.) -- reversing district court's decision that agency was not required to search for requested records maintained in the private email account of agency's director.  In reaching its decision, the court explained that “an agency always acts through its employees and officials.  If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.” 

Moon v. Fed. Bureau of Prisons (E.D. Mo.) -- dismissing suit because plaintiff failed to pay fees associated with his request, i.e., he failed to exhaust his administrative remedies.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: GAO suggests FOIA updates at Labor

Labor Department Overdue for FOIA Upgrades, Auditors Say

By Charles S. Clark, Gov't Executive,  July 5, 2016 

The same week President Obama signed a bill reforming the Freedom of Information Act, the Labor Department came into criticism for inefficiencies and out-of-date computer systems for responding to requests for documents.

Labor has “not updated its FOIA regulation to reflect changes in its process made in response to more recent amendments to the law and new implementing guidance,” the Government  Accountability Office concluded in a report dated June 2 but released June 30. The department, GAO said, “uses an information technology system to manage and track requests, but it has not implemented key required and recommended capabilities for enhancing FOIA processing, such as capabilities to accommodate individuals with disabilities or electronic redaction.”

Labor has been hit with multiple FOIA lawsuits due to delays, the auditors noted, and greater efficiency might help avoid them in the future.

Read more here.  

FOIA News: D.C. Circuit rules that FOIA may apply to non-government email accounts

Court: Officials can't use private email accounts to evade records laws

By Megan R. Wilson, The Hill, July 5, 2016

Federal officials may not use private mail accounts to get around public records laws, a federal judge ruled on Tuesday. 

The U.S. Court of Appeals for the D.C. Circuit overturned a lower court decision in which judges dismissed claims from the Competitive Enterprise Institute, a conservative think tank that attempted to obtain correspondence from a top White House official through the Freedom of Information Act (FOIA).

The White House’s Office of Science and Technology Policy (OSTP) said it did not need to search for or turn over records held by the head of OSTP on a private email account as part of the open records request.
In addition to official White House email, John Holdren, the director of the Office of Science and Technology Policy, also sent and received emails from a domain at the Woods Hole Research Center. 

Throughout the case, the government argued that “[d]ocuments on a nongovernmental email server are outside the possession or control of federal agencies, and thus beyond the scope of FOIA.” 

Judge David Sentelle, the chief judge to the U.S. Court of Appeals for the D.C. Circuit, disagreed with that reasoning and order the lower court to reconsider the case.

Read more here.  

FOIA News: Columbia Journalism Review on FOIA at 50

‘Kicking and screaming’: 50 years of FOIA

By Philip Eli, Columbia Journalism Review, July 1, 2016

THE FREEDOM OF INFORMATION ACT turns 50 on July 4. This is cause for celebration—and not just because President Obama signed a significant FOIA reform bill to mark the occasion (and atone in some small way for his abysmal FOIA record).

No, we should pause for FOIA’s birthday because every FOIA requester, whether they realize it or not, takes part part in a monumental, multi-decade experiment to see what happens when the most powerful nation in the world says, in essence, “We’re here, and legally obligated, to answer your questions.”

Since the law’s passage in 1966, FOIA requests have covered everything from nuclear tests in Alaska to vice-president Spiro Agnew’s resignation, from the last moments of the space shuttle Challenger to the attacks on September 11, from Amtrak cafeteria-car complaints to John Lennon’s FBI file. One New York Times op-ed from 1975 (published by the director of Ralph Nader’s Center for Study of Responsive Law) notes, “the Federal Government is the largest single creator and collector of information in the world,” and that FOIA “declares that all government documents, with certain specific exceptions, must be made available to the public.” The idea behind the law, if not its everyday application, remains awe-inspiring.

Read more here.

FOIA News: Happy 50th to the FOIA

In honor of this historic occasion, we have collected several documents related to the enactment of the statute:  

• LBJ's signing statement (from Nat'l Sec. Archive)
• Draft signing statements (from Nat'l Sec. Archive)
• LBJ's daily calendar for July 4, 1966 (which does not mention FOIA)
• Memorandum to the President, July 1, 1966 (from Nat'l Sec. Archive)
• List of principal files of LBJ Presidential Library concerning FOIA

FOIA News: Washington Post on the FOIA's 50th

FOIA at 50

By Editorial Board, Wash. Post, July 3, 2016

THE PRINCIPLE of holding government to account is at the bedrock of U.S. democracy, and information about government decisions is essential for that accountability. The Freedom of Information Act, although not something every citizen comes in contact with, remains a vital tool for keeping government open and honest. While not perfect — not every request results in disclosure of information or documents — it at least offers a law-based process for citizens to seek information from the powerful. Does a citizen in a place like China or Russia have such a chance to pull aside the curtains of secrecy with a simple letter? No.

With bipartisan backing, Congress recently approved the first update to the Freedom of Information Act since 2007, and President Obama signed the bill Thursday. It will not resolve many of the backlogs and frustrations, but it contains important improvements.

First signed into law 50 years ago this weekend by a reluctant President Lyndon Johnson, the FOIA has had a significant impact. Consider the examples compiled by the National Security Archive, a nonprofit organization that has championed the use of the law; they show that, among other things, the law has been used to expose waste and mismanagement, unmask decisions on national security, and highlight threats to food safety. Records from the Food and Drug Administration, obtained by Bloomberg News under the FOIA, revealed that a product labelled “parmesan cheese” had no parmesan at all.

Read more here.

Court opinions issued June 29-July 1, 2016

July 1, 2016

Platsky v. Nat'l Sec. Agency (S.D.N.Y.) -- finding that the FBI, NSA, and CIA properly refused to confirm or deny the existence of certain records concerning plaintiff.   

June 30, 2016

Solers v. Internal Revenue Serv. (4th Cir.) -- affirming district court's decision that IRS properly withheld six types of records pursuant to Exemption 3 (26 U.S.C. § 6103), Exemption 5 (deliberative process privilege), and Exemptions 6 and 7(C).

Harper v. EEOC (W.D. Tenn.) -- adopting magistrate's recommendation to grant summary judgment to government, which had redacted certain information from requested documents pursuant to Exemption 5. 

June 29, 2016

Renewal Servs. v. U.S. Patent & Trademark Office (S.D. Cal.) -- dismissing plaintiff's suit because the requested records were publicly available and indexed on agency electronic system, notwithstanding plaintiff's claim that agency's electronic system had an " excessively onerous method for extracting information."

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Dep't of Justice statement on enactment of FOIA amendments

PRESIDENT OBAMA SIGNS THE FOIA IMPROVEMENT ACT OF 2016

Office of Information Policy, FOIA Post, June 30, 2016

Today, as we approach the 50th anniversary of the Freedom of Information Act, President Obama has signed into law the FOIA Improvement Act of 2016.

In our democracy, the FOIA serves as a vital tool to keep citizens informed about the operations of their government. Since its enactment in 1966, the FOIA has been amended on a number of occasions to adapt to the times and changing priorities.  The FOIA Improvement Act of 2016 contains several substantive and procedural amendments to the FOIA, as well as new reporting requirements for agencies.  

In order to assist agencies in understanding all of the new changes to the FOIA, OIP has added two new resources to its website today. First, agencies and the public can find a detailed summary of all of the changes to the law on the "FOIA Resources" pages of our site. Additionally, OIP is making available a redline version of the FOIA which outlines each of the changes within the law. 

In the upcoming months, OIP will be issuing guidance to agencies on the implementation of the various new provisions of the law.  Announcements will be made on FOIA Post as new guidance is released. Agencies are encouraged to contact OIP's FOIA Counselor Service with any questions they may have on implementation of these new statutory provisions.

FOIA News: Obama signs FOIA reform legislation

Obama signs bill easing access to government records

By KVUE/AP, June 30, 2016

President Barack Obama has signed legislation into law making it easier for the public to obtain government records.

Federal agencies will now be required to consider releasing records under a "presumption of openness" standard, instead of presuming that the information is secret. Supporters say the shift will make it harder for agencies to block the release of government information.

The law aims to reduce the number of exemptions the government uses to withhold information.

An online portal will be created for individuals to submit document requests under the Freedom of Information Act. Agencies currently handle requests in different ways.

The law also places a 25-year sunset on the government's ability to withhold documents that demonstrate how the government reaches decisions.

Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) issued statements following the signing:

“One of our country’s hallmark values is a commitment to open and transparent government, and today is an important step towards ensuring the American people can hold their government accountable,” Sen. Cornyn said. “I appreciate Senator Leahy’s partnership on this bill and I am pleased to see it become law today.”

“It is fitting that the original Freedom of Information Act shares its birthday with our republic itself, and that we celebrate it by ushering in the most significant reforms to our nation’s premier transparency law in 50 years,” Sen. Leahy said. “The FOIA Improvement Act brings FOIA into the digital age and ensures that sunshine, not secrecy, is the default setting of our government. I look forward to continuing to work with Senator Cornyn to ensure that FOIA remains a successful transparency tool in the years to come.”