FOIA News: FCC finalizes new FOIA regulations

The Federal Communications Commission published a final rule in today's issue of the Federal Register to introduce new FOIA regulations.  The agency is making revisions to comply with changes introduced by the FOIA Improvement Act of 2016, to reflect existing FOIA practice, and to streamline agency procedures.  Public comments were not solicited.  The rule is effective February 13, 2017.

Court opinion issued Jan. 10, 2017

Manning v. U.S. Dep't of Justice (D.D.C.) -- ruling that DOJ properly relied on Exemption 7(A) to categorically withhold records related to its investigation into Plaintiff and others for disclosing classified and confidential information to WikiLeaks.

Summaries of all opinions issued since April 2015 available here.

FOIA News: FBI quietly decides all FOIA requests over 50 pages are “complex”

FBI quietly decides all FOIA requests over 50 pages are “complex”

By Michael Best, MuckRock, Jan. 11, 2017

Just six months ago, I reported that the FBI had quietly changed their FOIA processing queues without alerting anyone or updating their website. And now, once again, the Bureau has changed their standards for FOIA processing - before a request had to be 2,500 pages or more to be classified as large or complex. Now, without any announcement or update to the Bureau’s website, the number’s down to 51 pages.

According to the FBI’s website as of publication, a request still has to be 951 pages or more to qualify as large or complex.

However, according to correspondence the FBI sent on December 8th, the medium track for FOIA requests has been eliminated entirely.

Read more here.

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   

FOIA News: HUD finalizes new FOIA regulations

The Department of Housing and Urban Development published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The changes introduced by the agency are required to bring its regulations into compliance with the FOIA Improvement Act of 2016.  Further, the rule revises HUD's regulations "to more accurately reflect statutory language."  HUD did not solicit public comments prior to issuance of the final rule, which is effective February 13, 2017.

FOIA News: "FOIA Ombudsman" Interviews New OGIS Director

The National Archives and Record Administration's FOIA Ombudsman blog has posted a Q&A with Alina M. Semo, the new director of the Office of Government Information Services ("OGIS").  OGIS was created by Congress with the passage of the OPEN Government Act of 2007.  The agency is charged with reviewing FOIA activities government-wide and serving as a mediator in disputes between requesters and agencies.  Read the interview here.

FOIA News: OIP Issues New Guidance on the Definition of a "Record"

OIP Issues New Guidance on the Definition of a Record and the Processing of Records Responsive to a Request

Dep't of Justice, Office of Information Policy, Jan. 11, 2017

One of the first questions that an agency must answer as it begins to process a FOIA request is: “What exactly is the requester seeking?” The answer to that question will determine the scope of the agency’s search for responsive records and that in turn will create the universe of records that needs to be processed for release. Sometimes a requester seeks information on a particular topic and in the course of conducting their search for records on that topic, the agency may locate documents that discuss a number of different subjects, only some of which relate to the topic of the FOIA request. If only a portion of a document concerned the topic of a request, a common practice has been for an agency to process only the responsive portion and redact the other portions as “non-responsive” or “outside the scope” of the request. Given that the processing of FOIA requests can be very labor-intensive and time-consuming, it is in both the requesters’ interests and the agencies’ that time and resources not be expended unnecessarily by reviewing material that was not requested. While many district courts had approved the practice of agencies redacting “non-responsive” material from records processed for release under the FOIA, in July 2016, the issue was addressed by the Court of Appeals for the District of Columbia Circuit in American Immigration Lawyers Association v. EOIR, 830 F.3d 667 (D.C. Cir. 2016).

OIP’s guidance summarizes the Court of Appeals for the District of Columbia’s holding that the FOIA “does not provide for . . . redacting non-exempt information within responsive records.” As declared by the court, “once an agency identifies a record it deems responsive to a FOIA request, the statue compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.” As a result of the ruling in AILA, it will be important for agencies to carefully define what they consider to be the “records” responsive to any given FOIA request. In addition to some practical considerations, OIP’s guidance provides principles for agencies to follow when determining what constitutes a “record” responsive to a FOIA request.

* * *

DOJ's original press release is available here.

Q&A: Of Mice and Exterminators

Q.  I recently sent an e-mail to an agency to request a Material Safety Data Sheet (MSDS) related to an extermination problem and a planned clean-up.  Is the right to request an MSDS the same as the right to request records under the FOIA, or do I need a special form?

A.  No, the right to request a Safety Data Sheet (SDS) is not the same as the right to access agency records under the FOIA.  The Occupational Safety & Health Administration (OSHA) and the Environmental Protection Agency (EPA) regulate the “right to know” about hazardous chemicals.  Under OSHA rules, manufacturers of hazardous materials are required to provide SDSs for their products to downstream commercial vendors and distributors.  These entities must then provide the SDSs to their employees.  Generally speaking, any employer (including a federal agency) would be required to provide its employees with "ready access" to SDSs in the workplace.  There is no standardized form to request a SDS.  You can read OSHA’s Hazard Communication Standard, 29 C.F.R. sec. 1910.1200, online.  The agency has also published a brief on the topic.

If you are not an employee of the agency in question, or if you want a SDS for a hazardous material that is being used by a private enterprise, you probably do not have a right of "ready access," let alone a right to immediate access "upon request."  The agency may still respond to your e-mail, but you could also file a FOIA request.  So long as the agency has a copy of the SDS, you should eventually receive it.  Alternatively, you may consider requesting the SDS directly from the manufacturer, though it is not required to respond to you.

FOIA News: USPS reissues final rule for new FOIA regulations

The United States Postal Service reissued its final rule implementing new FOIA regulations in today's issue of the Federal Register.  In response to public comments, the Postal Service has modified its definition of a "representative of the news media" by removing an "organized and operated" standard.  The final rule is effective immediately.

FOIA News: FLRA issues new FOIA regulations

The Federal Labor Relations Authority published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The amendments are required to comply with the FOIA Improvement Act of 2016 and are also intended to clarify and update the agency's FOIA procedures.  The agency did not solicit public comments on the changes.  The final rule is effecitve January 24, 2017.