Prisology, Inc. v. Fed. Bureau of Prisons (D.C. Cir.) -- affirming district court's decision that plaintiff lacked standing to litigate agency's alleged violation of 5 U.S.C. § 552(a)(2).
Summaries of all opinions issued since April 2015 available here.
Last week, the National Security Archive (NSA) and the Project on Government Oversight (POGO) published the results and analysis of their survey of agency FOIA personnel and requesters about the search process. The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.
A. A useful survey and I largely agree with NSA and POGO's conclusions. If I were to quibble about anything, it would be with the following paragraph:
Unfortunately, statistics show extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.” But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches. Administrative appeals often result in a second, more thorough search that finds the documents requested.
Based on my experience as both agency counsel and a requester, I do not believe that the percentage of no-record responses is "extremely large." And I would say that "some," not "many" of those responses are due to inadequate searches. Similarly, I would say that appeals "sometimes," not "often," result in the discovery of additional requested records. In the absence of hard facts, of course, we'll have to agree to disagree about which adjectives are more appropriate.
R. One of the shortcomings of the survey is its small sample size: 57 responses, of which only 30 were from processors. Considering the bulk of the analysis centers on what agencies are doing, I'd have liked to see more input from the government. Otherwise, I agree that the conclusions are generally good.
The lack of government-wide guidance on how, precisely, an agency should conduct a search is one source of a lot of the identified problems. But that's probably unavoidable so long as agencies have varied infrastructures. Consider the IRS. In my experience, the IRS tries to avoid searching e-mail, for example, because it doesn't allow employees to self-search (at least, that's what IRS FOIA officers have told me). The alternative approach requires a lot of time and labor investment. The IRS also complains that it lacks modern hardware and software. Such technological limitations have a real impact on how the FOIA is implemented, especially in an increasingly high-tech world.
As for the "no records" issue, agencies regularly tell me that they don't have any responsive records. I'm sure that many of these responses reflect a good faith search. A few of them, however, may be based on a reluctance to deal with complex or politically sensitive requests. That many agencies rely on components or employees to actually carry out a search only facilitates such poor efforts in a limited number of cases. I've also found it common for an agency to tell me that it has a large number of potentially responsive records, but then produce hardly anything once the review process is done. Maybe the agency is erring on the side of being over-inclusive during the search process, but that just raises a different type of inefficiency. Finally, on a related note, I imagine a small number of requests are rejected as invalid or imperfect because an agency simply considers it difficult, as a practical matter, to conduct a search. I realize, though, that there may be a fine line between a complex request that requires a difficult search and an "unreasonably burdensome" request.
Here's one recommendation that wasn't in the survey: requesters and agencies should do a better job at talking to one another. Communication allows everybody to clarify the scope of the request, to identify expectations, and to understand an agency's limitations.
K. Considering the lack of uniform guidance on searches, a 16 percent "no responsive records" doesn't seem high to me either. That said, I think when you include that 16 percent with those instances where an agency gives you a couple of emails or documents at you just to close the request, that's where the "extremely large" would be found.
If you look at the survey responses to FOIA software, the lack of technology use for conducting searches is pretty stunning with 25 percent not using any software and 7 percent "not sure." I'm not sure which technology is best (the survey lists the software used, like FOIAOnline), but I'd wager that solving the technological limitations within agencies would be the best way to improve FOIA for processors and requesters.
Bill to make federal data open, machine-readable reintroduced in both chambers
Samantha Ehlinger, FedScoop, Mar. 30, 2017
A bipartisan and bicameral group of lawmakers reintroduced Wednesday the OPEN Government Data Act — a bill that passed the Senate last year but stalled in the House.
The bill, which would set a presumption that federal data should be published online in a machine-readable format, has a broad support from open data advocates, government spending watchdogs and the technology industry.
“There’s nothing especially useful about a spreadsheet trapped in a locked box but that’s basically how things work now,” said Sen. Ben Sasse, R-Neb., in a statement. “We need to make sure that appropriate and publicly available data is easily accessible to folks who can put it to work.”
Read more here.
DOJ Refuses FOIA Request On Emails, Claiming 'Personal Privacy'
Mike Masnick, Tech Dirt, Apr. 4, 2017
We've talked in the past about how government FOIA officers seem to really love exemption b(5) which covers "inter-agency or intra-agency memorandum or letters which would not be available by law to a party other than an agency in litigation with the agency." But, in my experience, I've seen a ton of the next exemption: the b(6) exemption, often called the "privacy exemption." Officially, the law (5 USC 552(b)(6)), says only that "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
That seems like a perfectly reasonable exemption. Even if it is part of a government discussion, we don't want the government revealing medical files or something of a similar nature. But, over the years, this has gotten abused in weird ways, such as the time a FOIA officer used b(6) to redact Beyonce's name in a FOIA request about Beyonce. Really.
However, now I think we've seen the b(6) exemption to end all b(6) exemptions. This came to investigative reporter David Sirota, who filed a FOIA request to find out about emails between Makan Delrahim and employees of the DOJ's antitrust division. This is potentially useful info, because Delrahim was just nominated to head that very division. But, more importantly, Delrahim has been a powerful lobbyist for Anthem who tried to help it get its merger with Cigna approved -- an effort that just recently failed in court, but may have another chance with Delrahim in a position of power.
Read more here.
(NB: While this article does not deal with the FOIA, the preservation of presidential records, including those created on an electronic medium such as Twitter, is important. There is also a lesson here: many agencies could improve their procedures and policies for saving text and instant messages for later disclosure under the FOIA.)
National Archives to White House: Save all Trump Tweets
Stephen Braun, Assoc. Press, Apr. 3, 2017
WASHINGTON (AP) — The National Archives and Records Administration has told the White House to keep each of President Donald Trump's tweets, even those he deletes or corrects, and the White House has agreed.
The head of the archives, David S. Ferriero, told two Democratic senators in a letter last week that the White House has assured him it's saving all Trump's Twitter blasts.
The archives contacted the White House about the matter because the Presidential Records Act requires such correspondence to be preserved for history. Ferriero did not say when the agency contacted White House officials to remind them about the records requirement, but officials briefed the White House counsel's office about the law on Feb. 2, according to the archivist's letter to Sens. Claire McCaskill of Missouri and Tom Carper of Delaware.
Read more here.
By Bill Theobald, USA TODAY, Apr. 4, 2017
USA TODAY has filed suit against the Department of Justice in attempt to obtain records of any FBI surveillance of Donald Trump or his top aides during the 2016 presidential campaign.
The lawsuit was filed early Tuesday in U.S. District Court for the District of Columbia by USA TODAY reporter Brad Heath under the Freedom of Information Act. It asks the court to force the FBI to turn over any records of surveillance "in their entirety."
Heath sent an FOIA request to the FBI on March 6 but has received "no substantive response."
Read more here.
FOIA Isn't Being Used the Way You Think It Is
"On the Media," WNYC, Mar. 31, 2017 (Audio)
The Freedom of Information Act, enacted in 1967 to make federal records accessible to the public, has widely been known as a means for journalists to obtain government data and demand accountability.
But a new study by data analyst Max Galka for FOIA Mapper shows that the majority of FOIA requests aren't made by journalists -- in fact, journalists only account for 7.6% of the requests. Bob talks to him about how FOIA is used by businesses, law firms, and even political party organizations to use government data for their own profit.
Listen here.
FOIA Search Survey Results and Analysis
Swetha Karent, Nate Jones, and Sean Moulton, Nat'l Sec. Archive, Mar. 31, 2017
The National Security Archive and the Project on Government Oversight developed and circulated an online survey to both FOIA processors and requesters to better understand how agencies search for records requested under the Freedom of Information Act (FOIA). The aim of this survey was to establish a foundation of knowledge on how agencies across government complete perhaps the most agency-unique, complicated, and time-consuming aspect of the FOIA process: finding the documents that have been requested under the law.
Read more here.
Justice v. Mine Safety & Health Admin. (S.D. W. Va.) -- denying plaintiff's bid for attorney's fees and costs because he failed to show that disclosure resulted in public benefit or that agency withholdings were unreasonable.
Judicial Watch v. U.S. Dep't of the Treasury (D.D.C.) -- ruling that Treasury performed a reasonable search for email between three agencies and Hillary Clinton's personal email address, rejecting plaintiff's argument that Treasury should have searched all employee email accounts instead of limiting to senior employees.
Smith v. CIA (D.D.C.) -- finding that: (1) CIA conducted adequate search for records concerning uranium shipments to Israel, and that agency justifiably declined to search its operational files; (2) agency properly withheld records pursuant to Exemptions 1, 3, 6, 7(C), and 7(E); and (3) circumstances did not allow plaintiff to amend Complaint in order to add DOJ as defendant.
Shapiro v. CIA (D.D.C.) -- in case involving request to FBI for records concerning Nelson Mandela, determining that: (1) FBI properly relied on Exemptions 1, 3, 7(A), and 7(D) to withhold requested records, but did not justify all withholdings made pursuant to Exemptions 5, 7(C), and 7(E); and (2) FBI did not provide sufficient information to allow court to decide whether agency properly withheld certain records as nonresponsive to request. Notably, the court stated that the FBI's general practice was consistent with D.C. Circuit precedence. It further observed that "[i]f an agency was forced to turn over a full manual or entire report every time a single page contained a responsive term, the amount of time, labor, and cost that would be required to review this purportedly 'responsive' material for exemptions would be exponential, hindering the agency's ability to process multiple requests efficiently or allocate its resources effectively."
Hunton & Williams LLP v. EPA (D.D.C.) -- ruling that EPA, Army Corps of Engineers, and Department of the Army conducted adequate searches for records concerning an industrial site in California, but that none of them established the propriety of their withholdings pursuant to Exemptions 5 and 6.
Tushnet v. U.S. Immigration & Customs Enforcement (D.D.C.) -- concluding that ICE failed to conduct adequate search for various records concerning counterfeit apparel, and that agency failed to justify the applicability of Exemption 7(E) to industry guides used by agents to detect counterfeit apparel.
Summaries of all opinions issued since April 2015 available here.
Q. I was a candidate in a recent election for public office. My former employer, who was an opposing candidate, released a report from my personnel file through the FOIA. According to everything I have read, it was illegal for him to release this report without my permission. Is this correct?
A. Probably not. It is true that the Virginia FOIA authorizes an agency to withhold personnel records in response to a request, except for records of an employee's position, job classification, salary (if over $10k), and expense reimbursements (all of which must be disclosed). The Virginia FOIA, however, does not prohibit the dissemination of personnel records to third parties in response to a request. See, e.g., Virginia Freedom of Information Council, Advisory Opinion 28-01 (May 31, 2001). For further guidance, you might wish to contact the Virginia Freedom of Information Council.