FOIA Advisor

FOIA Focus: Eric Bolinder, Esq., Cause of Action Institute

FOIA Focus (2019)Allan Blutstein1 Comment

When did you join Cause of Action and what are your main areas of practice?

I joined CoA in July of 2014.  My practice focuses on administrative law, including litigation in both federal district and appellate courts.  I also do a lot of transparency work, engaging in strategic oversight of the executive branch through investigations and FOIA litigation.

When did you submit your first FOIA request and what did you ask for?

My first FOIA request came in Fall of 2014.  It was to the Fish & Wildlife Service seeking a combination of records about broad subject areas and emails from specific individuals.  Reading it (I managed to dig it up for this interview!), it’s amazing to see how much I would change given the FOIA experience I’ve gotten in the past 5 years.  Narrower, focused FOIAs with defined search terms are the best way of getting quick FOIA productions

What is the most unusual agency response you have received to a FOIA request?

Oh this is one of my favorite FOIA stories.  One time I FOIA’d a number of agencies for text message records, which should be available under the statute.  However, most agencies simply do not have the technology to process them.  One agency, in an effort I appreciated, didn’t seem to know it could screenshot cell phone screens.  Instead, they took agency Blackberries, pulled up the texts, and then put them face down on a copy machine.  They then scanned those copies in and sent them to me.  I still laugh thinking about that one.  It’s also quite revealing of how far behind some agencies are with basic technology. 

If you could change one thing about the FOIA statute, what would it be and why? 

I think every FOIA litigator’s default response here would be to narrow exemption b(5), which I agree with, but let me try something out of the box.  On administrative appeal determinations for withholdings, agencies should be required to provide a sort of mini-Vaughn index.  Not something that hits the level of what’s required in litigation, but still requires a sworn declaration that the agency acted in good faith accompanied by a short explanation of the redactions.

In a recent ruling, a district court agreed with your argument that the FBI failed to show that exceptional circumstances justified a delay in processing documents.  What is the significance of this decision?  

The FBI has been seeking Open America stays in a number of its cases, asking for years of delays on releasing documents.  For our nation’s premier law enforcement agency, such delays on transparency are not acceptable.  Judge Kollar-Kotelly held that the FBI had not shown any exceptional circumstances, such as a spike in FOIA requests, and should be able to handle requests as quickly as usual.  This is critical because lawyers can take this decision and use it to stop the FBI’s attempts at Open America stays in other cases.  And, beyond that, it further establishes the bar all agencies must meet to get these onerous extensions.  In our case, the FBI had asked for a delay until December 25, 2020!  As much as I’d like to wake up to records under the tree…   

Where were you born/grow up? Where is your favorite hometown place to visit?

I was born in New York and grew up in Lancaster, PA. Favorite place is Lititz Springs Park.

If you could meet any historical icon, of the past or present, who would it be and why?

The Apostle Paul, who wrote nearly half of the New Testament.  Would love to spend time talking to him about his encounter with Christ, ministry, and the Gospel.  Thankfully, he wrote a lot of that stuff down already!

If you could watch only one movie again, which would it be and why?

Return of the Jedi, which I do watch again and again.  It’s not the best Star Wars movie, but it has it all: lightsaber duels, epic space battles, and Ewoks.  (Ok, just kidding on the last one).

It is no secret that the New York Yankees are your favorite baseball team.   Who would make your all-time best lineup?   

1B – Lou Gehrig

2B – Robinson Cano

SS – Derek Jeter

3B – Alex Rodriguez

C – Yogi Berra (Sorry Allan)

OF – Micky Mantle

OF – Babe Ruth

OF – Joe DiMaggio

SP – Roger Clemens

RP – Mariano Rivera

What are you really bad at that you would like to be better at?

Prayer, which has been a lifelong struggle for me.  It is such a privilege to be able to commune daily with God in prayer, and it’s something I’ve been working hard on lately.