FOIA Advisor

Commentary on draft "Release To One, Release To All" policy (Part II)

Commentary (2017)Allan Blutstein1 Comment

This post is continuation of a discussion among the FOIA Advisor staff about the Department of Justice's proposal to electronically publish records that have been processed in response to a single FOIA request -- a policy that would exceed the statute's requirements.   

A.  Ryan, your concerns about the "good cause" exception are not entirely unwarranted, though my general sense is that we should take heed of the expression "never look a gift horse in the mouth."  And I do not object to DOJ's court-endorsed reliance upon a "mosaic" approach to harm.  On another topic, I'll be interested to see how diligently DOJ enforces whatever policy is adopted -- that is, assuming the incoming Administration lets it go forward.  Before the passage of the FOIA Improvement Act of 2016, at least one agency -- namely the Consumer Financial Protection Bureau -- outright refused to abide by DOJ's "rule of three."  Indeed, CFPB failed to create a FOIA electronic reading room until 2016, five years after it formally began operations.  Sad!

K.  I think Allan's point might be the most important one. Our previous discussion about the aspects of this may just be putting the cart before the horse. The draft guidance says this on implementation: "1) the agency commits to fully posting at least some portion of their eligible FOIA-processed records by March 31, 2017, and 2) the agency commits to steady increases over time in the numbers of the records posted."  

It's very vague and doesn't include any measurable statistics to follow up on progress over time. The date for committing to following the policy at least in part is coming fast. For some of the busier agencies dealing with FOIA, this is a huge technological lift if they don't have a system already in place. What are the odds we see much progress by April 1, 2017?

R.  Good points.  I agree about the vagueness and lack of metrics, Kevin.  As Allan intimated, I think it'll come down to how the new Administration approaches the FOIA.  There hasn't been any shortage of speculation about President-elect Trump's position on transparency issues.  Perhaps he and his Attorney General will issue memoranda in the coming weeks to set the tone for the next four years, just like their immediate predecessors.  I wouldn't be surprised if any final "release to all" guidance were delayed.  And then there's still the enforcement issue that Allan also mentioned.  Unless this proposed presumption is codified (which is very unlikely), DOJ is only going to be as successful as it is persuasive.  DOJ's pilot included components at some of the major agencies--EPA, DHS, DOD, NARA, etc.--so hopefully they and others have been working on the necessary infrastructure in the background and won't delay working towards 100% implementation, assuming the White House doesn't slow things down.