FOIA Advisor

Commentary: The state of FOIA in 2019

Commentary (2019)Allan BlutsteinComment

The House Committee on Oversight and Government Reform held a FOIA hearing yesterday, as is customary during Sunshine Week, to discuss the state of FOIA. This year, government officials appeared from the Department of Justice’s Office of Information Policy, the Department of the Interior, and the Environmental Protection Agency. Neither the Office of Government Information Services—the federal FOIA Ombudsman—nor representatives from the requester community were invited to testify. The staff of FOIA Advisor, Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM), share their thoughts about the hearing.

AB: I was disappointed that DOJ was unable to provide any government-wide FOIA statistics for fiscal year 2018, for example the total number of requests received and processed. Granted the government was partially shutdown for 35 days, but affected agencies still had about four months to compile their metrics. The Department of the Interior’s witness predictably drew a number of questions about the agency’s widely-criticized proposed FOIA regulation, and I was pleased to hear that DOJ will now be working with the Department on that matter. As for the lawmakers, Congresswoman Wasserman Schultz earned demerits for asserting that she had never heard of agencies performing so-called “awareness reviews;” the issue has been well-documented for many years.

KS: I’m not inclined to believe that DOJ will steer Interior in the right direction — DOJ spent the whole hearing reminding Congress it only “encourages” compliance. I was most disappointed by members of Congress that described FOIA requests as harassment of the executive branch. It didn’t add to the discussion and it distracted from real issues that could be addressed in a bipartisan fashion. And while the discussion of content of agency websites unrelated to FOIA is interesting, it shouldn’t be discussed in the annual FOIA hearing.

RM: I tend to agree with Kevin that we shouldn’t hold our breath when it comes to OIP getting Interior to fix its proposed FOIA rule. (In all honesty, I’m surprised that it hasn’t already been scrapped. But that’s a discussion for another time.) I had expected the hearing to be a bit more adversarial. Some of the freshmen members—such as Alexandria Ocasio-Cortez and Ayanna Pressley—weren’t terribly probing in their lines of questioning, or they seemed to veer off into topics unrelated to the FOIA, as Kevin mentioned. The decision by EPA and Interior to pull Administrator Wheeler and Acting Solicitor Jorjani as witnesses was a wise move on the part of the Administration; it defused what could have otherwise become a very partisan and un-objective affair. I suppose the most disappointing aspect of the hearing was the lack of participation on the part of the requester community. Despite the hypocrisy of the previous administration on transparency issues and the rather unfortunate scandals that occurred, things haven’t improved much and have likely gotten worse. Requesters have a lot to say about those developments.