FOIA Advisor

FOIA Focus: James Valvo, Counsel and Senior Policy Advisor, Cause of Action Institute

FOIA Focus (2015-16)Allan BlutsteinComment

Q.  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?

A.  The FOIA Advisory Committee is an opportunity for the requester community and agency staff to connect with each other and learn about the struggles each has when it comes to working under the statute.  Our goal is that by working together and sharing information we can craft solutions that will benefit both sides of the FOIA equation.  There are several elephants in the room, including the ever-increasing volume of requests, finite agency budgets, and agency failure to comply with statutory deadlines.

Personally, I’d like to find ways to both improve the administration of FOIA while introducing mechanisms to hold agencies accountable for decisions they make that are unsupported by the statute or caselaw.

Q.  If you could change anything about the FOIA, what would it be and why?

I’d like to get more information from the agency in the final determination letter.  As a requester, it is often difficult to know whether the agency’s decisions on fees, sufficiency of the search, or application of redactions is proper.  That leaves the requester in the untenable position of appealing in the hopes of winning or living with an unclear final determination. 

For example, agencies sometimes deny a request for a fee waiver or fee classification without providing information on how the requester has come up short.  Similarly, a description of the search, including names of records custodians and offices searched would allow requesters to better understand how the agency went about looking for the requested records.

Q.  What is the most unusual FOIA response that you have ever received? 

A.  The most unusual responses are usually errors by the FOIA officers, which are quickly reversed with a phone call or administrative appeal.  For example, I remember learning about a response were the requester was told that an entire class of records (Inspector General reports) were categorically not subject to FOIA.  A short email to the agency head quickly reversed this improper position.

Q.  What suggestions would you give to new FOIA requesters?

A.  Describe the records you’re seeking as specifically as possible.  This may seem like obvious advice but I often come across very broad requests that don’t really explain precisely what they’re looking for.  Use plain English and give as much detail as possible; don’t try to hide the ball.  Try to put yourself in the position of the FOIA officer receiving the request.  How would you go about beginning a search for the records you’re seeking?  And for the lawyers out there, you’re not writing a discovery request.

Q.  What is your view on the government’s “release to one, release to all” project?

Release to one, release to all is an interesting policy agencies may soon take to post nearly all of their released FOIA productions on their websites.  Agencies processed more than 700,000 FOIA productions last year.  If in the future most of their productions go online we will see a dramatic increase the amount of information available to the public.  That is a good thing.  

But of course, the devil is in the details.  It will be important that agencies post the information in a manner that is easily searchable and able to discovered by individuals that may be seeking that information in the future.  If the agencies only post a series of PDF files with little information about their contents, this policy may do little good.  However, if agencies take the time to include tags or other descriptions of the types of information in the files, this policy may make a dent in the volume of future FOIA requests and increase the public's understanding about government.   

I also believe that the Department of Justice’s Office of Information Policy is taking the right approach by acknowledging that different agencies have different capacities and restraints.  Allowing each agency to steadily make progress toward full adoption of release to one, release to all is the right approach. 

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

I went to American University in Washington, DC for both undergrad and law school.  My degrees are in political science and law.

What are your favorite sports teams?

I grew up in Michigan so I'm a fan of the Tigers, Lions, Red Wings, and University of Michigan.  Go Blue!