FOIA Advisor

FOIA News: GAO publishes report on FOIA litigation costs

FOIA News (2015-2025)Allan BlutsteinComment

On September 8, 2016, the U.S. Government Accountability Office (GAO) published a report that examined FOIA litigation-related costs incurred by federal agencies for lawsuits in which the plaintiffs substantially prevailed.  Of 1,672 lawsuits decided between 2009 and 2014, GAO identified 112 lawsuits in which the plaintiff substantially prevailed.  GAO reviewed cost data provided by the Department of Justice and other agencies, but it was not able to fully determine the litigation-related costs for these 112 lawsuits. 

Read the GAO report here.  

FOIA: National Security Archives' Nate Jones weighs in on Vox and government emails

FOIA News (2015-2025)Kevin SchmidtComment

Against Transparency?

By Nate Jones, Unredacted, Sept. 7, 2016

His argument that “Email isn’t mail” –along with being incorrect– is also not novel.  It is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989.  Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation.  Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion.  After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43.  Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.

So, to be clear, Yglesias’s argument is not a new, provocative idea.  There has been much discussion about the topic, and there is clear law and court precedent that emails (and text messages, and Slack messages, and Gchats) are firmly established federal records. It’s the law of the land.  In fact, the US National Archives is currently completing work to ensure that each and every federal agency has a system in place by December 2016 to  “manage all email records in an accessible electronic format” –so that they can more effectively be preserved and released  in response to FOIA requests.

Read more here.

FOIA News: Congressman Chaffetz blames Clinton for State Dep't FOIA delays

FOIA News (2015-2025)Allan BlutsteinComment

Republican accuses Clinton of State Department records mess

By Richard Lardner, The Associated PressSept. 8, 2016

WASHINGTON (AP) — A top House Republican is accusing Hillary Clinton of making a "mess" of records management at the State Department that has frustrated requests for information from Congress, the media and the public.

Congressman Jason Chaffetz of Utah chairs the House Oversight and Government Reform Committee.  Chaffetz said at a hearing Thursday that Clinton "conveniently created" a chaotic system that is costing millions of dollars to repair.

Chaffetz pointed out that The Associated Press had to go to court to try to obtain detailed planning schedules from Clinton's four-year tenure as secretary of state.

Patrick Kennedy is undersecretary of state for management. Kennedy says the agency is improving its records management but continues to struggle with the heavy volume of open-records requests that it gets.

Hearing testimony and video available here

FOIA News: Muckrock's Michael Morisy and Shadowproof's Kevin Gosztola respond to Vox

FOIA News (2015-2025)Kevin SchmidtComment

Michael Morisy: Making government officials’ emails open to scrutiny is key to accountability

By Michael Morisy, Nieman Lab, Sept. 7, 2016

If you read any accountability journalism, it’s amazing how often emails received through public records requests and the Freedom of Information Act provide a pivotal role. If anything, stories based on public records stories tend to be the antidote to the “hot take” culture that Yglesias worries is corrupting good government.

Plus, even government phone calls are often recorded and provide important accountability. One great example, via the Associated Press’ Ted Bridis: How a No Fly Zone over Ferguson — originally stated as a public safety measure — was actually created to keep the media away.

Making emails and other modern communication channels exempt from FOIA means that most of these stories would be impossible, or at least much weaker. Instead, reporters would have to rely on citing “according to sources,” which leaves their reporting vulnerable to he-said-she-said back and forth that inevitably dulls its impact.

The other half of Yglesias’ argument, that too much oversight impairs government work, also misses the mark. He’s absolutely right that government employees need the ability to brainstorm and speak candidly. This is what the B(5) exemption, phone calls, and in-person meetings let them do. But it’s equally important that government officials get used to working in public — aware that part of their job is being able and ready to share, explain, and occasionally defend their work.

Read more here.

The Derangement of Journalists Against Transparency

By Kevin Gosztiola, Shadowproof, Sept. 7, 2016

Vox’s Matt Yglesias recently outed himself as a Journalist Against Transparency or a jatter. He argued, very incorrectly, that emails and other electronic records produced by “conversational” communication tools should not be subject to FOIA.

The problem is jatters like Yglesias do not support the journalism being done around Hillary Clinton’s emails. He favors increasing restrictions on what government records can be released to journalists and the public because he identifies with a candidate, who has been dogged by the fact that she tried to keep her emails out of the purview of FOIA when she was the Secretary of State.

Read more here.

Court opinions issued Sept. 6, 2016

Court Opinions (2015-2024)Allan BlutsteinComment

Hiken v. Dep't of Def. (9th Cir.) -- vacating the district court's fee award after finding that the court failed to consider plaintiff's submission of evidence concerning the prevailing hourly attorney's rates from 2006 to 2008.  A dissenting panelist opined that the plaintiff's notice of appeal failed to actually dispute the fee award and that the district court acted within its discretion in calculating the amount.  

Marino v. Dep't of Justice (D.D.C.) -- determining that multiple DOJ components conducted adequate searches in response to pro se prisoner's requests and that the government properly withheld certain records pursuant to Exemption 5, 6, 7(C), 7(D), and 7(F). 

Nat'l Sec. Counselors v. Cent. Intelligence Agency (D.D.C.) -- granting summary judgment to six intelligence agencies   on three claims that remained from dozens of claims brought by plaintiff in connection with its numerous FOIA requests.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Additional reaction to Vox concerning government email

FOIA News (2015-2025)Allan BlutsteinComment

Why We Need More Access to Bureaucrats’ Emails, Not Less

The Freedom of Information Act is crucial for government accountability.

By C.J. Ciaramella, ReasonSept. 7, 2016 

I've written more than 100 Freedom of Information Act (FOIA) requests over the past few years, as well as a newsletter on FOIA policy, so it caused me great pain to read the headline over at Vox on Tuesday: "Against Transparency: Government officials' email should be private, just like their phone calls."

Vox's Matt Yglesias writes that, in an age of casual email, the problem with making government officials' emails subject to public records by default "is that in addition to serving as a deterrent to misconduct, it serves as a deterrent to frankness and honesty."

The solution, Yglesias says, is to make emails off-limits to public record searches, much like phone calls.

"Government secrecy can be, and in some ways is, out of control," he writes. "But a private conversation to facilitate a frank exchange of ideas is not the same as a secret bombing campaign in Cambodia. We need to let public officials talk to each other—and to their professional contacts outside the government—in ways that are both honest and technologically modern."

Read more here

FOIA News: NARA's Open Government Plan available for comment

FOIA News (2015-2025)Allan BlutsteinComment

National Archives’ Open Government Plan 4.0 Open for Comment

Office of Government Information Services Blog, Sept. 7, 2016

As the Archivist of the United States announced earlier this week, you can now review and comment on  the National Archives and Records Administration’s Open Government Plan 4.0 on Github. The plan covers steps the National Archives intends to take over the next two years to strengthen open government within our agency and across the Federal government.

The plan discusses our continued work leading and supporting the 2016-2018 term of the Freedom of Information Act (FOIA) Advisory Committee. As discussed in a fact sheet released by the White House marking the President’s signature of the FOIA Improvement Act of 2016 and in remarks by U. S. Chief Technology Officer Megan Smith and Office of Management and Budget Director Shaun Donovan during the committee’s kick-off meeting, the Committee is charged with looking broadly at the challenges that agency FOIA programs will face in light of an ever-increasing volume of electronic records; the committee also is tasked with charting a course for how FOIA should operate in the future.

Read more here.

FOIA News: Vox argues that government officials' email should be private; Frequent FOIA requesters respond

FOIA News (2015-2025)Kevin SchmidtComment

Against transparency

Government officials' email should be private, just like their phone calls.

By Matthew Yglesias, Vox, Sept. 6, 2016

“Can I give you a call?”

It’s the worst possible reply to an email, but one I receive all too often in the course of reporting. Phone calls are journalistically indispensable when you want to conduct an extended interview, but for a routine query or point of clarification, email is much, much better.

Besides which, like any self-respecting person born in the 1980s I hate phone calls.

The issue is that administration officials and other executive branch aides don’t want to leave a record of the conversation that might come to light one day. Not necessarily because they have anything scandalous to say. After all, we live in a world where something as banal as Doug Band, a top Clinton Foundation aide, asking Huma Abedin, a top State Department aide, for a special diplomatic passport for a hostage rescue trip to North Korea and being told he can’t have one can be spun as a scandal by a determined team of reporters and editors.

Read more here.

Response to the article from frequent FOIA requesters:

FOIA Focus: William Holzerland, Esq., Food & Drug Administration

FOIA Focus (2015-2021)Allan BlutsteinComment

How did you get started in the FOIA field?

After watching my fellow St. Bonaventure University alumnus and New York City Fire Chaplin Fr. Mychal Judge become World Trade Center casualty number 1 on September 11, 2001, I determined I absolutely had to join what eventually became the U.S. Department of Homeland Security (DHS), in some capacity or another, to serve our country.  I was fortunate to be hired to serve as a FOIA Assistant at the Transportation Security Administration (TSA), which is a component of DHS.  I thought that post meshed well with my education in journalism, and I aimed to become a voice for government transparency on the inside. 

What other FOIA positions have you held prior to joining the FDA?

In addition to my first post at TSA, I’ve served in FOIA positions at the DHS Office of Inspector General, as Associate Director for Disclosure Policy and FOIA Program Development in the DHS Privacy Office, and as Senior FOIA Analyst and FOIA Public Liaison at the Consumer Financial Protection Bureau (CFPB).

What are your current job duties?

I serve as Director for the Division of Information Disclosure at the FDA’s Center for Devices and Radiological Health (CDRH). I manage a group of talented and well-educated professionals who administer FOIA, the Federal Records Act, the Privacy Act of 1974, and other privacy laws, at our Center.

What is the most common FOIA request you receive at the FDA?

The most common FOIA request at my Center is from commercial requesters seeking records pertaining to third parties’ applications to market medical devices.

What is the most unusual FOIA request you have ever seen at FDA or elsewhere?

There are many interesting ones that could be listed here, but one of my favorites was a one-line piece of correspondence during the early days at DHS in which the requester sought something along the lines of, “access to and copies of a list of everything we’re not allowed to know.”  It was rather unmanageable from a processing side, perhaps, but clever in its simplicity, and was resolved with a phone call between me and the requester.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage? 

A number of the FOIA matters I worked on at DHS received significant media coverage.  That level of scrutiny made sense, as our Department was new and directly impacts the lives of our fellow Americans on a daily basis. We processed many requests related to disasters, such as 9/11 or Hurricane Katrina, which were broadly covered.

What do you like and not like about working on FOIA matters?

I have enjoyed pushing my agencies for more transparency, and my primary focus remains on helping people at the core.  I enjoy interacting directly with FOIA requesters. I try to be a “good government”-focused person and take a pragmatic approach to problem-solving. Those parts are all fun. However, like many of my customers, I also find needless bureaucratic delays incredibly frustrating.

You were recently selected to serve on the National Archives and Record Administration’s FOIA Advisory Committee.  What do you hope to accomplish on the Committee?

Being appointed by the Archivist of the United States to serve on the FOIA Advisory Committee is a huge honor.  I’m excited to collaborate with my colleagues in civil society and on the government side to find solutions to some of the problems we routinely encounter.  Accordingly, I look forward to our Committee making practical recommendations that can be quickly implemented by the government to help the process work better for FOIA requesters. 

Where were you born/grow up?  Is there an off-the beaten path that you would recommend that tourists visit?

I am an extremely proud native of Buffalo, N.Y.  While our winter snowfall is much-maligned, I miss it, and summers in Western New York are gorgeous.  I highly recommend visiting my hometown.  There are plenty of spots to visit, such as Niagara Falls, which is close by, excellent local fare, such as our famous wings, and plenty more that you’ll find at the many craft breweries that are new to the city.  Downtown Buffalo has undergone a fantastic renaissance in recent years, and I’d recommend checking out the Canal side area, surrounding the remnants of the Erie Canal, where you’ll find food, music, ice cream, and beautiful views of Lake Erie. There’s stunning architecture, including several Frank Lloyd Wright-designed homes, Frederick Law Olmsted’s park systems, and too much art and history to list.  If it sounds like I am nuts about the Queen City, I am, and I think everyone should visit it!

Where did you go to school and what did you study?  

I attended St. Bonaventure University, where I earned a dual Bachelor of Arts in Journalism/Mass Communications and History.  I went to law school in the evening and on weekends at the University of Baltimore School of Law while serving in the government, and am admitted to practice law in Maryland.

What was your first job ever?  What did you like or not like about it?

My first job was delivering the Buffalo News to homes, beginning when I was about 11 years old.  I loved the newsprint on my hands, and enjoyed being able to sneak a peek at the box scores from the prior night’s baseball games while I walked my route. Walking to deliver the papers through mountains of snow in the winter was brutal, however.

What do you like to do in your spare time?

I am an avid sports fan, particularly of my beloved Buffalo Bills and Buffalo Sabres, love reading history books, and enjoy traveling as much as possible.

If you could meet any historical icon, of the past or present, who would it be and why?

I’m mostly Irish and have always been fascinated with our history.  I’d be interested in meeting figures involved with the independence movement, such as Michael Collins or Éamon de Valera, given the opportunity to do so.

What is your favorite television show?    Movie? 

I don’t watch much television, but House of Cards is an excellent show.  The Godfather is by far my favorite flick.

What are you really bad at that you would love to be better at?

Like many of my fellow Irishmen, I’ll sing at the drop of a hat, but when I do so, it tends to be an unfortunate experience for those within earshot.

FOIA News: More Clinton records will be released in response to multiple FOIA requests

FOIA News (2015-2025)Allan BlutsteinComment

Media, Conservatives Seek Release of Hillary Clinton’s Records

Many of the Freedom of Information Act requests are years old, forcing filers to go to court to get agencies to act

By Byron Tau, Wall St. J., Sept. 5, 2016

An aggressive legal campaign waged by media outlets, conservative groups and Republican operatives will result in thousands of pages of Hillary Clinton’s official records being released between now and Election Day.

That means the Democratic presidential nominee over the final weeks of the campaign will be questioned about everything from emails to her daily meeting schedules while she was secretary of state. While Mrs. Clinton has held a durable if narrower lead over Republican rival Donald Trump in national polls, she continues to be dogged by records releases as well as a new Federal Bureau of Investigation report on her use of a private email account at the State Department.

That FBI summary, released late last week, showed Mrs. Clinton having little command of basic requirements dealing with protection of government secrets and spotty recall of the details surrounding her email setup. On about three dozen occasions, Mrs. Clinton told FBI agents she couldn’t recall certain facts.

Read more here (subscription may be required).