FOIA Advisor

FOIA News: Digital tools allow public officials to evade scrutiny

FOIA News (2018)Allan BlutsteinComment

Confide, Gmail 'confidential mode' threaten to undermine public records laws

By Ryan J. Foley, Wash. Times, July 22, 2018

One app promotes itself as a way to discuss sensitive negotiations and human resources problems without leaving a digital record.

Another boasts that disappearing messages “keep your message history tidy.” And a popular email service recently launched a “confidential mode” allowing the content of messages to disappear after a set time.

The proliferation of digital tools that make text and email messages vanish may be welcome to Americans seeking to guard their privacy. But open government advocates fear they are being misused by public officials to conduct business in secret and evade transparency laws.

Read more here.

FOIA News: NY Times describes its FOIA efforts

FOIA News (2018)Allan BlutsteinComment

How Times Reporters Use the Freedom of Information Act

By Jake Lucas, NY Times, July 21, 2018

Scott Pruitt’s resignation as head of the Environmental Protection Agency this month was preceded by a steady drumbeat of revelatory stories — from The Times and others — about his misuse of government resources. Some of the most remarkable of those stories were underpinned by information obtained through the Freedom of Information Act, or FOIA.

The law, first enacted in 1966, and significantly strengthened after Watergate in 1974, gives the public the right to access records from any federal agency, with a handful of exceptions, and states have similar open-records laws that grant the same general right at the local level.

Read more here.

FOIA News: In oral argument, DOJ argues OLC advice not automatically subject to the FOIA as agency "working law"

FOIA News (2018)Ryan MulveyComment

DOJ: Advice To Agencies Not Automatically Subject To FOIA

Bryan Koenig, Law360, July 20, 2018

Oral arguments over a lawsuit attacking a claim by the U.S. Department of Justice’s Office of Legal Counsel that its legal advice is broadly exempt from the Freedom of Information Act boiled down Friday to a chicken-and-egg argument, with the DOJ asserting that agencies must adopt the advice before it becomes subject to disclosure.

The Campaign for Accountability contends, however, that formal written opinions from the OLC — a DOJ office that acts as legal adviser to the executive branch — are immediately binding on agencies and thus count as “working law” subject to disclosure under FOIA. It’ll be up to a D.C. federal judge to decide which comes first, the binding opinion or adoption by the agency, with the DOJ arguing of the latter Friday in an attempt to nix the CfA’s amended complaint after its first was tossed last year.

“There will always be an intermediate step. ... to give operative legal effect” to OLC opinions, DOJ attorney Daniel Schwei said. Those opinions, he argued, “have no effect until a policy-making agency actually does something.”

The OLC has already posted about 1,300 of its opinions online, but it’s not enough for the CfA, which filed suit in June 2016 only for U.S. District Judge Ketanji Brown Jackson to dismiss the initial complaint last year.

Read more here (subscription required).

Commentary: First "advisory opinion" issued by OGIS

Commentary (2018)Allan BlutsteinComment

The FOIA requires the Office of Government Information Services to offer mediation services to resolve disputes between requesters and agencies, and it authorizes OGIS to issue advisory opinions "at the discretion of the Office or upon request of any party to a dispute."   On Wednesday, July 17, 2018, after teasing Twitter followers about a "big announcement," OGIS issued an "advisory opinion" -- the first in its history -- concerning agency communications with requesters.  The staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- share their views about OGIS's historic action.

AB:  It reminded me of Geraldo Rivera's "The Mystery of the Al Capone's Vaults," an overhyped 1986 television special that infamously failed to deliver on its tantalizing promises.  The content of OGIS's guidance is useful, to be sure, but it  is not the "advisory opinion" that Congress or the requester community envisioned -- that is, an opinion about a specific dispute between parties.  So why the embellishment?  OGIS has consistently claimed that issuing such opinions would undermine its role as a neutral mediator.  Fair enough.  DOJ should be the government's final decision-maker on the interpretation of the law in any event.

RM:  Yes, the substance of OGIS's "advisory opinion" is helpful but less than groundbreaking.  I'm not sure I agree, however, that Congress intended these sorts of opinions to address only particular disputes.  Section 552(h)(3) is ambiguous.  In my mind, the whole concept of an advisory opinion suggests it is meant to be more general and provide an interpretation of the law that transcends any specific case.  Here, OGIS's opinion was issued at its own discretion and based on its experience mediating a number of disputes.  I don't think that's objectionable.  And as far as I can tell, the legislative history is silent about what Congress actually envisioned OGIS's role to be with advisory opinions, although DOJ unsurprisingly raised "concerns" that OGIS would be given "any sort of policymaking and adjudicative role with respect to FOIA compliance."  I'd just add that it's unclear what OGIS even thinks its authority should be; the agency issued a proposed rule at the end of 2016 to introduce regulations implementing its statutory mission, but the rule was never finalized and inexplicably failed to address advisory opinions.

KS: The tinfoil hat side of me believes this advisory opinion may have been a trial run. As Ryan noted, DOJ is not happy that OGIS is able to issue any sort of opinion on FOIA compliance. So OGIS wanted to test the water and put out a rather unobjectionable first advisory opinion and see what sort of feedback they get. DOJ puts out guidance related to improving agency communication with requesters on a regular basis, so this isn't breaking any new ground. At least publicly, I'd say mission accomplished, but who knows what sort of feedback they've gotten behind the scenes. We won't be able to glean much information about OGIS' intent until they put out another advisory opinion.

Court opinion issued July 19, 2018

Court Opinions (2018)Allan BlutsteinComment

Sikes v. U.S. Dep't of the Navy (11th Cir.) -- holding that: (1) district court erred in allowing Navy to ignore plaintiff's request for certain records concerning suicide of Admiral Boorda merely because agency had released records in response to plaintiff's duplicate request five years earlier; (2) although district court failed to address whether Navy properly withheld suicide note from Admiral Boorda to his wife pursuant to Exemption 7(C), there was no need to remand case because law was clear that note was properly protected from disclosure.  

Summaries of all published opinions issued since April 2015 available here

FOIA News: DOJ-OIP Releases Summary of FY2018 Chief FOIA Officer Reports

FOIA News (2018)Ryan MulveyComment

Summary and Assessment of Agency 2018 Chief FOIA Officer Reports Issued

Dep't of Justice, Office of Info. Pol'y, July 19, 2018

Today OIP released the summary and assessment of agencies’ 2018 Chief FOIA Officer Reports.  The Chief FOIA Officer Reports, which detail the steps their agencies have taken to embrace the Department of Justice's FOIA Guidelines, serve as a valuable resource for agencies to describe the various initiatives undertaken to improve their administration of the FOIA. This past March marked the ninth year that agency Chief FOIA Officers submitted these reports to the Department of Justice.

OIP’s summary is broken down into five parts detailing the efforts of agencies in each of the five key areas addressed in the Department's FOIA Guidelines:

  • Applying the Presumption of Openness,
  • Having Effective Systems for Responding to Requests,
  • Making Information Available Proactively,
  • Utilizing Technology, and
  • Reducing Backlogs and Improving Timeliness.

Agencies and the public are encouraged to read both OIP’s summary and each agency’s individual report to learn more about the various efforts and steps taken over the last reporting year to improve the administration of the FOIA across the government.

Read more here.

FOIA News: News organization argues FOIA case before 11th Circuit

FOIA News (2018)Ryan MulveyComment

News Org. Asks 11th Circ. To Revive FOIA Suit For 9/11 Docs

Carolina Bolado, Law360, July 19, 2018

A Florida news organization urged the Eleventh Circuit on Thursday to revive its bid for access to documents related to potential Saudi involvement in the 9/11 attacks, arguing there is evidence the FBI’s response to the records request was not done in good faith.

In oral arguments in Miami, Thomas Julin of Gunster, who argued on behalf of independent news outlet Florida Bulldog and its founder and editor Dan Christensen, asked for the appeals court to reverse a summary judgment order based on vague assertions from the FBI about where and how it had looked for records responsive to Christensen’s Freedom of Information Act request.

Read more here (subscription required).

Court opinions issued July 18, 2018

Court Opinions (2018)Allan BlutsteinComment

Wild Horse Freedom Fed'n v. U.S. Dep't of the Interior (D.D.C.) -- ruling that: (1) Bureau of Land Management failed to perform adequate search for various records pertaining to Wild Horse and Burro Program; (2)  agency properly withheld certain (but not all) information from one exhibit pursuant to Exemption 5, and that redactions on second exhibit could not be reviewed until agency provided court with clean copy.

W. Values Project v. U.S. Dep't of Justice (D.D.C.) -- holding that government improperly issued Glomar response based on Exemption 5 for request pertaining to Office of Legal Counsel opinions, and that it performed reasonable search for remaining requested records.

Summaries of all published opinions issued since April 2015 available here


Court opinions issued July 17, 2018

Court Opinions (2018)Allan BlutsteinComment

Judicial Watch v. DHS (D.C. Cir.) -- in a 2-1 decision, reversing district court's decision that plaintiff's complaint failed to adequately allege “policy or practice” claim against Secret Service based on history of delayed responses.  

Trautman v. DOJ (D.D.C.) -- determining that National Archives & Records Administration failed to adequately describe search of three agency offices for records pertaining to investigation of former Archivist Archivist of the United States, Allen Weinstein.

Summaries of all published opinions issued since April 2015 available here

FOIA News: OGIS issues guidance on agency-requester communications

FOIA News (2018)Allan BlutsteinComment

Today the Office of Government Informations Services issued guidance -- inexplicably referred to as an "Advisory Opinion" -- concerning agency communications with requesters.  In sum, OGIS recommends that agencies  provide, at a minimum, a contact name along with email and mailing addresses, and telephone and fax numbers of the agency; include information regarding the FOIA Public Liaison’s duties; and clearly state that contacting the FOIA Public Liaison or OGIS does not stop the 90-day appeal clock.

Last month, DOJ issued guidance to agencies on the importance of providing "quality requester services."