FOIA Advisor

Commentary (2019)

FOIA Commentary: DOJ releases FY 2018 FOIA metrics

Commentary (2019)Allan BlutsteinComment

On June 6, 2019, the Department of Justice released a summary of the annual FOIA reports prepared by federal agencies for the fiscal year 2018. The staff of FOIA Advisor — Allan Blutstein, Ryan Mulvey, and Kevin Schmidt — reacts to DOJ’s report.

AB: My first thought was “it’s about time,” because fiscal year 2018 ended more than eight months ago. As for the data, I was not surprised by the increase in the number of incoming FOIA requests, though the total number (863,729) fell short of the one million figure predicted by OIP’s director. Nor was I surprised by the 17 percent increase in backlogged requests in light of the month-long government shutdown, which DOJ’s report does not even mention.

KS: The elephant in the room, as always, is the government-wide release rate that irks the FOIA community every year. The report notes an overall release rate of 93.8%, but as National Security Archive wrote on this yesterday, “[w]hat the report does not say is that OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases.” NSA estimates the release rate is closer to “between 50 and 60 percent.” It’s obvious to everyone involved that there are issues to be addressed in FOIA processing (resources, staffing, technology, etc.), so it helps nobody when these reports provide a distorted view of the what’s actually happening.

RM: In my mind, it would be helpful for the DOJ summary to breakdown statistics and distinguish between “true” FOIA requests and first-party requests governed by the Privacy Act. Considering the number of first-party requests handled by agencies such as the Department of Homeland Security, bracketing the Privacy Act may provide a more accurate picture of where the government is with administration of the FOIA. I also would have like more information about how agencies are complying with their proactive disclosure obligations. For example, how often are agencies posting frequently requested/”rule of 3” records?

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.