FOIA News: Is part of the requester community threatening FOI laws?

Could the open government movement shut the door on Freedom of Information?

Suzanne Piotrowski, The Conversation, Mar. 13, 2018

For democracy to work, citizens need to know what their government is doing. Then they can hold government officials and institutions accountable.

Over the last 50 years, Freedom of Information – or FOI – laws have been one of the most useful methods for citizens to learn what government is doing. These state and federal laws give people the power to request, and get, government documents. From everyday citizens to journalists, FOI laws have proven a powerful way to uncover the often-secret workings of government.

But a potential threat is emerging – from an unexpected place – to FOI laws.

We are scholars of government administration, ethics and transparency. And our research leads us to believe that while FOI laws have always faced many challenges, including resistance, evasion,  and poor implementation and enforcement, the last decade has brought a different kind of challenge in the form of a new approach to transparency.

Read more here.

FOIA News: GAO releases FOIA report

GAO: Agencies Need to Take Further Steps to Address FOI Request Backlog

 Homeland Security Today, Mar. 13, 2018

A GAO report found that federal agencies still need to implement some of their Freedom of Information Act requirements, which is holding back transparency and accountability in government operations.

FOIA requires federal agencies to provide the public with access to government records and information based on the principles of openness and accountability in government. In the last nine years, federal agencies subject to FOIA have received about six million requests.

Eighteen of the agencies reviewed had backlogs of varying sizes, with the Department of Justice, Department of Homeland Security, Department of State and National Archives and Records Administration having backlogs of over 1000 or more requests between 2012 and 2016. These four agencies had the largest backlogs, which they attributed to increases in the number and complexity of FOIA requests. However, all four agencies lacked plans to implement best practices and  reduce the backlog to a more manageable level. GAO stated that: “Without a more consistent approach, agencies will continue to struggle to reduce their backlogs to a manageable level, particularly as the number and complexity of requests increase over time. As a result, their FOIA processing may not respond effectively to the needs of requesters and the public.”

Read more here.

FOIA News: Full text of Sen. Leahy's Sunshine Week keynote address at NARA

Leahy: The Trump administration's attack on the people's right to know

Patrick Leahy, Bennington Banner, Mar. 13, 2018

Every year, during Sunshine Week, we recommit ourselves to an essential premise of our democracy: Our government must be an open government. A government that hides from the people can never be a government of, by, and for the people. Sunshine Week is a time to reflect on this principle, and to challenge ourselves to make our democracy ever more transparent and accountable to the American people. 

This principle was instilled in me at a very early age. My parents were independent printers and newspaper publishers in Vermont, making their livelihood as proud members of the free press. The vital importance of the First Amendment to our Republic is deeply ingrained in me and in my family. But freedom of the press can guarantee little without freedom of information. Without meaningful access to information, the press and the public will struggle to serve as a check against the abuses and excesses of those in power. I'm proud to point out that Vermont's press and Vermont's lawmakers revisit these issues on a regular basis. 

It is with this mindset that I arrived to the United States Senate in 1974, right when the Freedom of Information Act was making major headlines. Responding to a constitutional crisis provoked by secrecy and misdeeds within the Nixon administration, Congress overwhelmingly passed a series of sweeping amendments to FOIA, giving teeth to the law. As much as any law on the books, FOIA became a guardian of our democracy. 

Read more here.

FOIA News: Senate Judiciary Committee hearing today

A reminder that the SJC will be holding a FOIA hearing today at 10:15am.  A video of the hearing is available here.  The three witnesses appearing before the committee are Melanie Pustay (DOJ/OIP), Alina Semo (NARA/OGIS), and David Owner (GAO).

FOIA News: D.C. Circuit hears argument on propriety of request to EPA

Judges weigh FOIA requests on alleged scientific misconduct

By Amanda Reilly, E&E News, Mar. 12, 2018

The U.S. Court of Appeals for the District of Columbia Circuit heard a case related to alleged scientific misconduct by U.S. EPA, shown here, during the Obama administration. Tim Evanson/Flickr

Federal judges today struggled with a convoluted Freedom of Information Act lawsuit stemming from accusations of scientific misconduct at U.S. EPA.

"This is not the typical FOIA case," attorney John Hall, who is representing a coalition of Northeast cities, acknowledged at the outset of the arguments in front of the U.S. Court of Appeals for the District of Columbia Circuit.

The case stems from a 2012 decision by EPA Region 1 — which encompasses the Northeastern states — to seek to impose more restrictive nitrogen limits for sewage treatment plants to protect New Hampshire's Great Bay estuary.

Read more here.

FOIA News: FEMA Releases Documents Withheld Under Exemption 5 After Forseeable Harm Analysis

According to Buzzfeed Senior Investigative Reporter Jason Leopold on Twitter:

THIS is why it's important to always appeal #FOIA request denials AND why it's crucial to mention the forseeaable harm language in your initial request and appeal.

Thanks FEMA pic.twitter.com/6Kz6IYSF5r

— Jason Leopold (@JasonLeopold) March 12, 2018

FOIA News: AP Releases Sunshine Week Analysis

US sets new record for censoring, withholding gov’t files

By Ted Bridis, Associated Press, March 12, 2018

The federal government censored, withheld or said it couldn’t find records sought by citizens, journalists and others more often last year than at any point in the past decade, according to an Associated Press analysis of new data.

The calculations cover eight months under President Donald Trump, the first hints about how his administration complies with the Freedom of Information Act.

The surge of people who sought records but ended up empty-handed was driven by the government saying more than ever it could not find a single page of requested files and asserting in other cases that it would be illegal under U.S. laws to release the information.

Read more here.

FOIA News: Recent DOJ-OIP Blog Updates

Fiscal Year 2017 FOIA Data Available Now on FOIA.gov

Dep't of Justice, Office of Info. Pol'y Blog, Mar. 9, 2018

The Justice Department’s Office of Information Policy is pleased to announce that all 116 agencies subject to the FOIA have finalized their Fiscal Year (FY) 2017 Annual FOIA Reports and these reports are now available on FOIA.gov.

Each year, federal departments and agencies are required by law to submit a report to the Attorney General detailing various statistics regarding their agency’s FOIA activities, such as the numbers of requests processed and received, and the time taken to process them. The data from all of these Annual FOIA Reports is then uploaded onto FOIA.gov, the Justice Department’s government-wide FOIA resource, so that the public can easily view it and compare FOIA data by agency and over time.

OIP is currently in the process of compiling its Summary of Agency Annual FOIA Reports for FY 2017, however, from the data uploaded onto FOIA.gov we can already see that demand for FOIA continued to increase in FY 2017 with a record high 818,271 incoming requests.

Read more here.

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2017 FOIA Litigation and Compliance Report Now Available

Dep't of Justice, Office of Info. Pol'y Blog, Mar. 9, 2018

Last Friday, OIP posted the Department’s 2017 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing our efforts to encourage agency compliance with the FOIA.  The report also contains a listing of all FOIA litigation cases received and decided in the prior calendar year.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.      

This year's report once again summarizes new policy guidance issued by OIP, which for 2017 includes:

• Defining a “Record” Under the FOIA
• Updated Department of Justice Handbook for Agency Annual Freedom of Information Act Reports
• Guidance for Further Improvement Based on 2017 Chief FOIA Officer Report Review and Assessment
• Processing Reminders for the Last Quarter of Fiscal Year 2017
• Guidelines for 2018 Chief FOIA Officer Reports
• Agency FOIA Websites 2.0

Read more here.

FOIA News: NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures

NOAA Records Demonstrate Expansion of Sensitive Review FOIA Procedures

By Ryan Mulvey, Cause of Action Institute, March 12, 2018

Newly Released Records Provide Details about NOAA’s Enhanced Sensitive Review

In an attempt to understand NOAA’s sensitive review practice, on December 11, 2017, we submitted a FOIA request to NOAA seeking access to all records about the agency’s practice of identifying “high visibility” FOIA requests, as well as its tracking of requests concerning the Trump transition.  This week the agency provided an interim production of responsive records, and the records produced are helping us piece together just what the agency considers to be a high visibility request.

As noted, sensitive review refers to the practice of giving certain FOIA requests extra scrutiny, including by bringing political appointees into the review process.  At the Department of Treasury during the Obama Administration, for example, a whole committee of political appointees—along with representatives from the agency’s public affairs, legislative affairs, and general counsel offices—availed themselves of the opportunity to review responsive records and delay disclosures.  In the past, sensitive review has been used to target media requesters and frustrate the release of potentially embarrassing or politically-damaging agency records.  It even prompted an investigation by the House of Representatives Committee on Oversight and Government Reform.

Read more here.

FOIA News: Awards for worst FOIA responses of the year

The Foilies 2018

By Dave Maas, Aaron Mackey, & Camille Fischer, Elec. Frontier Found., Mar. 11, 2018

Recognizing the Year’s Worst in Government Transparency

Government transparency laws like the Freedom of Information Act exist to enforce the public’s right to inspect records so we can all figure out what the heck is being done in our name and with our tax dollars. 

But when a public agency ignores, breaks or twists the law, your recourse varies by jurisdiction. In some states, when an official improperly responds to your public records request, you can appeal to a higher bureaucratic authority or seek help from an ombudsperson. In most states, you can take the dispute to court.

Public shaming and sarcasm, however, are tactics that can be applied anywhere.

Read more here.