FOIA Advisor

Commentary: Let the sunshine in

Commentary (2018)Allan BlutsteinComment

On March 13, 2018, the Senate Judiciary Committee will resume its tradition of holding a FOIA hearing during Sunshine Week.  If they were Senators for a day, here are the questions that the staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- would ask the witnesses from the government and the requester community.

AB:   Among the questions I would want to ask the government witnesses is whether they support or oppose updating the Office of Management and Budget's 1987 FOIA fee guidelines.  In light of changes in technology and case law in the past thirty years, OMB's guidelines appear to be outmoded in several respects.  I also would like to hear the government's suggestions for reining in litigation-related costs, which have increased for the past eight consecutive fiscal years and topped $40 million in FY 2017.

To the requester community, I would ask the witnesses  -- presumably all of whom will be active FOIA requesters -- whether they have availed themselves of the dispute resolution services offered by the Office of Government Information Services, which was created ten years ago primarily to help the public resolve FOIA disputes.  And I would ask whether the witnesses would support any statutory provision addressing the issue of "vexatious" requesters, as certain local and foreign governments have enacted.

RM:  With respect to the government, I'd be interested in know how many agencies have been diligent in modernizing their reading rooms and actually starting to proactively disclose frequently-requested records, as set forth in the FOIA Improvement Act of 2016's "Rule of Three."  I'd also like to know how many agencies have updated their FOIA regulations.  Section 3 of the Improvement Act required agencies to implement the statutory amendments within 180 days; I suspect many agencies have yet to do so.  More globally, however, I'd like to know whether OIP has pushed agencies to update other aspects of their FOIA policies and procedures, including fee provisions.  Even with the introduction of DOJ's template or "model" FOIA regulations, a few agencies are still sticking with OMB's outdated "organized and operated" standard for defining news media requesters, or they're even inventing their own extra-statutory requirements, such as the SEC with its proposed definition of an "educational institution."

For requesters, I'd like to hear more anecdotes about how FOIA customer service has changed under the Trump Administration.  There's been a lot of accurate reportage about "sensitive review" processes being enhanced by political appointees.  Yet I've personally experienced some minimal improvements at a handful of agencies, perhaps because of an effort to resolve long-pending requests from the backlog.  I also want to know whether any sophisticated requesters--that is, those who typically appeal or litigate their requests--have had success in getting agencies or courts to take the newly-codified "foreseeable harm" standard, 5 U.S.C. § 552(a)(8)(A)(i), seriously.  The only reported decision I've read made our list for the "Top FOIA Decisions of 2017."  I'd like to know if we missed any, or if the standard is being considered at the administrative level.

KS:  For the government, I have some questions about the launch of the new FOIA portal FOIA.gov. Some preliminary praise is due for the FOIA.gov build. In my limited time with it, it seems functional and easy to use. The same cannot be said for most government websites. From my quick checking, I found components (I checked HQ/Office of the Secretary for most) of the following agencies are not linked in the FOIA.gov system: HHS, DHS, HUD, State, USDA, EPA (which is still on FOIA Online). Are those agencies expected to join the system and if so, when will that happen? Speaking of, what is the fate of FOIA Online with the release of FOIA.gov? DOJ OIP should be asked about its own record in responding to complex requests. According to FOIA.gov, OIP has an average of 483 working days for complex requests with 35 requests older than 400 days in FY2016 and 8 in FY2017. What gives? .

I concur with Ryan here on the requester side. It will be interesting to see what the requester community says during Trump's first Sunshine Week. I wonder if some of the usual suspects may put a different spin on a Sunshine Week project or if we'll get most of the usual reports. The backlog point is interesting as well. EPA has publicly announced its intention to focus on its backlog of requests -- presumably at the expense of new requests. I wonder if other agencies are following suit. Overall, the FOIA experience for me in the last year has been largely the same, so I'm excited to find out what the community has in mind.