FOIA Advisor

FOIA Focus (2015-16)

FOIA Focus: Ian Smith, Esq., Investigative Associate, Immigration Reform Law Institute

FOIA Focus (2015-16)Allan BlutsteinComment
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Q.  What are your current job responsibilities? 

A.  I work at a nonprofit law firm that represents people harmed by the government’s failure to regulate immigration. Besides our general courtroom advocacy work, we also have an active investigative and FOIA program that I’ve been helping to run since I started in 2015. We frequently file FOIA suits when requests are stonewalled or when records are improperly withheld. We work on FOIA with agency insiders, Hill staffers, and immigration-control activists in general.

Q.  About how many requests, appeals, and lawsuits have you worked on at IRLI?

A. Since we started our FOIA practice in 2015, we’ve submitted around 150 requests (mostly federal), each one containing around 5 or 6 request items.  Currently, we have about a dozen appeals pending and around 5 lawsuits, each one regarding 5 to 8 requests.

Q.   What would you say are your most notable FOIA matters at IRLI?   

We uncovered some highly revealing emails from 2013 between ICE agents and their D.C. superiors and between ICE agents themselves, the latter expressing frustration they were being forced to release from detention criminal aliens previously deemed a ‘public safety risk’ due to the GOP-led sequestration. The agents basically call this political theatre performed at the expense of the public’s safety.

Additionally, we obtained more than one thousand pages of DHS Secretary’s calendar records and found, among other things, that he met routinely provided access to open-borders groups and lobbyists. We also pinpointed the date of a key meeting in which the President’s 2014 executive amnesty program appeared to have been hatched.

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

A. We’re frequently told the government “does not track the data” we’re requesting. It’s a curious response as it’s not an admission that the information isn’t held and maintained; it simply means they don’t actively track or tally it. For this reason, for data requests we always specify that the agency should pull the data regardless.

Q.  What do you like and not like about working on FOIA matters?

 A. Being able to generate original content for and generally enlighten the news-reading public on matters the government doesn’t want them to know about can be very satisfying. But to be honest, the FOIA process is very draining for the most part. There are numerous ways the government ensures that requestors do not receive information to which they’re entitled and keeps certain information out of public view.  Being able to know the policy area closely, how the agencies work, how to appeal effectively, and what precisely to ask for does go very far, but it’s highly frustrating to know those assets and efforts shouldn’t be as necessary as they are. 

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

A. Obviously Exemption 5 has to be narrowed if FOIA is to mean anything. It’s being employed more and more amongst the agencies, apparently becoming a ‘go-to’ redaction for yes-men bureaucrats. Throughout the Obama years, a big problem for immigration-control activists has been the administration pushing through open-borders policies via agency directives that go completely against statute. Being able to ascertain the legal rationale for those directives would go a long way in putting top cabinet officials and their attorneys on notice and curbing executive overreach. Mind you, I’m not calling for transparency when it comes premature disclosure of policies under review; only for transparency of pre-decisional documents with regards to implemented decisions. A time limit on the use of Exemption 5 might be a less complicated -- though less satisfactory -- way of achieving this.

Before the latest FOIA amendments, it had been discussed among frequent requestors that a public interest balancing test be employed with regards to Exemption 5. This would prevent agencies from hiding their policy deliberations, for example, when the public benefits of disclosure outweigh the risks of harm. At the very least, such a test would check the agencies blanket use of Exemption 5.

FOIA officers routinely defend themselves to me by saying Congress just won’t appropriate the necessary funds i.e. for more officers, better processing systems, etc. Taking their excuses at face value, I say increase the fees then. Fees could be dramatically ramped up, for instance, for commercial requestors, such as the now-common hedge fund requestors who, of course, can and will pay fees. Also, being more forthcoming with documents and preventing litigation would free up resources and decrease the amount of litigation fees expended by agencies after they lose FOIA fights.

Q.   If the government would release any document(s) you requested, what would you ask for and why?

A. We sued DOJ in an attempt to obtain the legal opinion published by the Office of Legal Counsel regarding Obama’s 2012 Deferred Action for Childhood Arrivals amnesty announcement. Through this process, we found out that the opinion was “oral” (according to them) and never actually formally drafted. Since then, I’ve raised this curious issue in op-eds: why did DOJ subsequently opt for a more transparent and formal drafting process two years later for the identical Deferred Action for Parents of Americans program? So there’s that, and illegal alien-crime figures as well. On behalf of a client of ours, Don Rosenberg, whose son was killed by an illegal alien, we’re trying to retrieve the data needed to ascertain these figures. As Don’s mentioned in op-eds, “After all, the Justice Department can tell me how many pick-pocketing crimes there were last year but not how many people were killed by illegal aliens.”  

Q.  Where were you born/grow up?

A.  I was born just outside Seattle, grew up in Vancouver, British Columbia, and lived in Beijing, Hong Kong, and Sydney, Australia for many years.  

Q.  Where have you attended school and what did you study?  

A. I studied English Literature at the University of British Columbia and law at the University of New South Wales in Sydney.

Q.  What do you like to do in your spare time? 

A. I write for our staff blog when I’m free -- always about immigration law and policy. I publish the posts at The Hill, National Review, Daily Caller, and several other outlets. I also read a lot.

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

A. I don’t think I need to meet with anyone in particular, but there are certainly people who I wish were still around. I grew up reading George Orwell and he’s certainly been an important influence. His articulation on the specialness of the English alone should guarantee his place in the canon, although it really was his ability to persevere through the intellectual intimidations of his time that impresses me most. It was impossible for him to not speak his mind and point out the hypocrites, like the apologists for Stalin among the British intelligentsia. Then, of course, there are the ideas on thought-control he expressed in 1984, and the use of distortive, euphemistic language, etc. I certainly would have liked to hear what he’d have to say today, especially on the highly exploitative language from the open-borders movement.

Q.  What are some of your favorite books and television shows?

A. Favorite books on the topic of immigration would have to include How Many Is Too Many? by Phil Cafaro. It covers most of the policy arguments for controlling and reducing our intake numbers and in an incredibly thoughtful way. The more cloistered and naïve elements in our society today feel immigration in the West must operate like a global welfare program i.e. the West is rich, so adding to its population increases global wealth, etc. It’s a surprisingly difficult argument to take on, because it’s so impossibly naïve, however, Cafaro refutes it handedly. I haven’t watched TV since the nineties.  

[9/1/18:  Please see the following update concerning our interview with Mr. Smith]

FOIA Focus: James Valvo, Counsel and Senior Policy Advisor, Cause of Action Institute

FOIA Focus (2015-16)Allan BlutsteinComment

Q.  You were recently selected to serve on the National Archives and Record Administration’s FOIA Advisory Committee.  What do you hope to accomplish on the Committee?

A.  The FOIA Advisory Committee is an opportunity for the requester community and agency staff to connect with each other and learn about the struggles each has when it comes to working under the statute.  Our goal is that by working together and sharing information we can craft solutions that will benefit both sides of the FOIA equation.  There are several elephants in the room, including the ever-increasing volume of requests, finite agency budgets, and agency failure to comply with statutory deadlines.

Personally, I’d like to find ways to both improve the administration of FOIA while introducing mechanisms to hold agencies accountable for decisions they make that are unsupported by the statute or caselaw.

Q.  If you could change anything about the FOIA, what would it be and why?

I’d like to get more information from the agency in the final determination letter.  As a requester, it is often difficult to know whether the agency’s decisions on fees, sufficiency of the search, or application of redactions is proper.  That leaves the requester in the untenable position of appealing in the hopes of winning or living with an unclear final determination. 

For example, agencies sometimes deny a request for a fee waiver or fee classification without providing information on how the requester has come up short.  Similarly, a description of the search, including names of records custodians and offices searched would allow requesters to better understand how the agency went about looking for the requested records.

Q.  What is the most unusual FOIA response that you have ever received? 

A.  The most unusual responses are usually errors by the FOIA officers, which are quickly reversed with a phone call or administrative appeal.  For example, I remember learning about a response were the requester was told that an entire class of records (Inspector General reports) were categorically not subject to FOIA.  A short email to the agency head quickly reversed this improper position.

Q.  What suggestions would you give to new FOIA requesters?

A.  Describe the records you’re seeking as specifically as possible.  This may seem like obvious advice but I often come across very broad requests that don’t really explain precisely what they’re looking for.  Use plain English and give as much detail as possible; don’t try to hide the ball.  Try to put yourself in the position of the FOIA officer receiving the request.  How would you go about beginning a search for the records you’re seeking?  And for the lawyers out there, you’re not writing a discovery request.

Q.  What is your view on the government’s “release to one, release to all” project?

Release to one, release to all is an interesting policy agencies may soon take to post nearly all of their released FOIA productions on their websites.  Agencies processed more than 700,000 FOIA productions last year.  If in the future most of their productions go online we will see a dramatic increase the amount of information available to the public.  That is a good thing.  

But of course, the devil is in the details.  It will be important that agencies post the information in a manner that is easily searchable and able to discovered by individuals that may be seeking that information in the future.  If the agencies only post a series of PDF files with little information about their contents, this policy may do little good.  However, if agencies take the time to include tags or other descriptions of the types of information in the files, this policy may make a dent in the volume of future FOIA requests and increase the public's understanding about government.   

I also believe that the Department of Justice’s Office of Information Policy is taking the right approach by acknowledging that different agencies have different capacities and restraints.  Allowing each agency to steadily make progress toward full adoption of release to one, release to all is the right approach. 

Where did you go to school and what did you study?  

I went to American University in Washington, DC for both undergrad and law school.  My degrees are in political science and law.

What are your favorite sports teams?

I grew up in Michigan so I'm a fan of the Tigers, Lions, Red Wings, and University of Michigan.  Go Blue!

FOIA Focus: William Holzerland, Esq., Food & Drug Administration

FOIA Focus (2015-16)Allan BlutsteinComment

How did you get started in the FOIA field?

After watching my fellow St. Bonaventure University alumnus and New York City Fire Chaplin Fr. Mychal Judge become World Trade Center casualty number 1 on September 11, 2001, I determined I absolutely had to join what eventually became the U.S. Department of Homeland Security (DHS), in some capacity or another, to serve our country.  I was fortunate to be hired to serve as a FOIA Assistant at the Transportation Security Administration (TSA), which is a component of DHS.  I thought that post meshed well with my education in journalism, and I aimed to become a voice for government transparency on the inside. 

What other FOIA positions have you held prior to joining the FDA?

In addition to my first post at TSA, I’ve served in FOIA positions at the DHS Office of Inspector General, as Associate Director for Disclosure Policy and FOIA Program Development in the DHS Privacy Office, and as Senior FOIA Analyst and FOIA Public Liaison at the Consumer Financial Protection Bureau (CFPB).

What are your current job duties?

I serve as Director for the Division of Information Disclosure at the FDA’s Center for Devices and Radiological Health (CDRH). I manage a group of talented and well-educated professionals who administer FOIA, the Federal Records Act, the Privacy Act of 1974, and other privacy laws, at our Center.

What is the most common FOIA request you receive at the FDA?

The most common FOIA request at my Center is from commercial requesters seeking records pertaining to third parties’ applications to market medical devices.

What is the most unusual FOIA request you have ever seen at FDA or elsewhere?

There are many interesting ones that could be listed here, but one of my favorites was a one-line piece of correspondence during the early days at DHS in which the requester sought something along the lines of, “access to and copies of a list of everything we’re not allowed to know.”  It was rather unmanageable from a processing side, perhaps, but clever in its simplicity, and was resolved with a phone call between me and the requester.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage? 

A number of the FOIA matters I worked on at DHS received significant media coverage.  That level of scrutiny made sense, as our Department was new and directly impacts the lives of our fellow Americans on a daily basis. We processed many requests related to disasters, such as 9/11 or Hurricane Katrina, which were broadly covered.

What do you like and not like about working on FOIA matters?

I have enjoyed pushing my agencies for more transparency, and my primary focus remains on helping people at the core.  I enjoy interacting directly with FOIA requesters. I try to be a “good government”-focused person and take a pragmatic approach to problem-solving. Those parts are all fun. However, like many of my customers, I also find needless bureaucratic delays incredibly frustrating.

You were recently selected to serve on the National Archives and Record Administration’s FOIA Advisory Committee.  What do you hope to accomplish on the Committee?

Being appointed by the Archivist of the United States to serve on the FOIA Advisory Committee is a huge honor.  I’m excited to collaborate with my colleagues in civil society and on the government side to find solutions to some of the problems we routinely encounter.  Accordingly, I look forward to our Committee making practical recommendations that can be quickly implemented by the government to help the process work better for FOIA requesters. 

Where were you born/grow up?  Is there an off-the beaten path that you would recommend that tourists visit?

I am an extremely proud native of Buffalo, N.Y.  While our winter snowfall is much-maligned, I miss it, and summers in Western New York are gorgeous.  I highly recommend visiting my hometown.  There are plenty of spots to visit, such as Niagara Falls, which is close by, excellent local fare, such as our famous wings, and plenty more that you’ll find at the many craft breweries that are new to the city.  Downtown Buffalo has undergone a fantastic renaissance in recent years, and I’d recommend checking out the Canal side area, surrounding the remnants of the Erie Canal, where you’ll find food, music, ice cream, and beautiful views of Lake Erie. There’s stunning architecture, including several Frank Lloyd Wright-designed homes, Frederick Law Olmsted’s park systems, and too much art and history to list.  If it sounds like I am nuts about the Queen City, I am, and I think everyone should visit it!

Where did you go to school and what did you study?  

I attended St. Bonaventure University, where I earned a dual Bachelor of Arts in Journalism/Mass Communications and History.  I went to law school in the evening and on weekends at the University of Baltimore School of Law while serving in the government, and am admitted to practice law in Maryland.

What was your first job ever?  What did you like or not like about it?

My first job was delivering the Buffalo News to homes, beginning when I was about 11 years old.  I loved the newsprint on my hands, and enjoyed being able to sneak a peek at the box scores from the prior night’s baseball games while I walked my route. Walking to deliver the papers through mountains of snow in the winter was brutal, however.

What do you like to do in your spare time?

I am an avid sports fan, particularly of my beloved Buffalo Bills and Buffalo Sabres, love reading history books, and enjoy traveling as much as possible.

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

I’m mostly Irish and have always been fascinated with our history.  I’d be interested in meeting figures involved with the independence movement, such as Michael Collins or Éamon de Valera, given the opportunity to do so.

What is your favorite television show?    Movie? 

I don’t watch much television, but House of Cards is an excellent show.  The Godfather is by far my favorite flick.

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

Like many of my fellow Irishmen, I’ll sing at the drop of a hat, but when I do so, it tends to be an unfortunate experience for those within earshot.

FOIA Focus: Martin Michalosky, Deputy Chief Administrative Officer, Consumer Financial Protection Bureau

FOIA Focus (2015-16)Allan BlutsteinComment
FOIA Focus: Michael Michalosky

In 2010, you became CFPB’s first FOIA manager.  Where did you get your start with the FOIA and how did you end up at CFPB?

My introduction to FOIA was during my tenure with the Air Force Office of Special Investigations in the late 1990s.  Following my separation from the Air Force, I was a contractor providing technology support to the Army Intelligence and Security Command’s FOIA/Privacy Office and Investigative Records Repository.   After five years, I accepted the opportunity to lead that office before ending up at the CFPB as its first FOIA Manager. 

What were some of your biggest challenges at CFPB in 2010?   

Naturally, there are countless challenges with establishing a new organization.  When I think back to late 2010, I remember focusing on those tasks that must be accomplished (like regulations and policies) but spent a lot of time on building a successful organizational culture around FOIA.  One of the biggest challenges was implementing technology in every aspect of FOIA operations including tracking every aspect of the request to create an all-inclusive administrative record, digitizing and redacting all forms of documents, electronically responding to all requests (unless otherwise stated by requester), and the integrating of an eDiscovery solution to search emails and network drives for responsive records.  Another significant challenge was building a culture around FOIA, which included gaining the support of leadership and establishing methods to continually educate employees on FOIA.

How have CFPB’s FOIA operations changed since 2010?  

I would say that the FOIA program has matured over the last five years.  For example, we started tracking requests with a spreadsheet and now have a robust application that handles every aspect of a request. 

What is the most unusual FOIA request you have ever worked on?  The most interesting request?

I have always found the requests that involve a perceived conspiracy particularly interesting, from the point of view of what the public thinks the government is up to behind the scenes.  For example, requests that involve UFOs.  Likewise, my most interesting requests came when I supported the federal law enforcement and the intelligence communities.

In late 2015, you left your position as FOIA manager to become CFPB’s Deputy Chief Administrative Officer.   What are some of your current duties?

In general, I develop and implement a variety of strategies to support the Facilities, Security, Library, Records Management, and FOIA programs.  Additionally, I work on a multitude of operational matters across the CFPB.

What do you miss and not miss about being a full-time FOIA practitioner?

Ironically, I miss the interaction with the public.  However, I do appreciate not hearing complaints about processing requests from the public any longer.  Sorry, I am being honest!

Will you stay involved with FOIA at CFPB or in your personal capacity?

Yes.  In my new position at the CFPB, I am still involved with FOIA. 

What will you remember the most about your time as FOIA manager at CFPB?  What accomplishments as CFPB’s FOIA manager are you most proud of?

It was very rewarding to have the opportunity to be one of the first 100 employees at a new startup.  I was blessed with the chance to develop every aspect of a FOIA operation from scratch, as well as a culture around transparency. 

Getting a little more personal, where were you born/grow up?

Johnstown, Pennsylvania, which is the home of the 1889 flood, steel mills, coal mines, and the steepest vehicular inclined plane in the world.

Where did you go to school and what did you study?  

I attended a vocational technical high school and majored in computer programming (the old stuff like COBOL, Fortran, RPG).  While in the Air Force, I graduated from the College of Southern Maryland with an AAS in Information Services Technology and the Community College of the Air Force with an AAS in Information Management.    Lastly, I earned a BS degree in Information Systems Management and a MS in Management (minor in Homeland Security) from the University of Maryland University College.

What was your first job ever?  What did you like or not like about it?

I grew up on a farm and loved it!  It gave me the foundation for a good work ethic, but I think it contributed to the allergies I have now!

What do you like to do in your spare time?

Well, I have two young kids under 5 years old, so I have no spare time!

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

Probably Ronald Reagan because he was such a diplomat throughout the world and cared deeply for his family.

Name a favorite book, television series, and movie

I do not like to read, but I do read the Bible quite a bit.  Favorite television series is definitely Law & Order, and favorite movie is probably Heartbreak Ridge with Clint Eastwood.

What was your most memorable travel experience?

Unfortunately, I do not travel very much.  However, I have a lot of good and bad memories from my (official) travel to Saudi Arabia to support Operation Southern Watch.

FOIA Focus: Frank Vance, Manager of Disclosure Services & FOIA Officer, Office of the Comptroller of the Currency, U.S. Dep't of the Treasury

FOIA Focus (2015-16)Allan BlutsteinComment

How long have you been working in the FOIA field?   
I have worked in the FOIA field since August 1984.

Where did you get your start and what did you do?  
I was hired as a FOIA Specialist, GS-7.  I was responsible for responding to FOIA requests and to serve as a Press Spokesman for the Office of the Comptroller of the Currency.

How long have you been at the Office of the Comptroller of the Currency and how did you find your way there?  
I began my career in the federal government in 1978 as a clerk/typist for the OCC.  In 1980, I became the Publications Control Officer and managed our publications sales and subscriptions at the OCC.  In 1983, I moved to the Department of the Army, Army Office Chief of Chaplains as an Ecclesiastical Information Assistant.  I then returned to the OCC in August 1984 to serve as a press spokesman and handle FOIA.  In April 1989, I became the Chief of the FOIA Branch, Information Services Division at the Federal Home Loan Bank Board.  In October 1989, the FHLBB was dissolved and became the Office of Thrift Supervision.  (I have the distinction of being the FHLBB’s final FOIA Officer and the OTS’ first FOIA Officer.)  In February 1990, I returned to the OCC as it FOIA Officer, where I have been ever since.  In this position, I am the third FOIA Officer the agency has ever had.  Currently I am acting as the Manager of the Editorial Services Unit as well as the Manager of Disclosure Services & FOIA Officer.  I’m acting in the other job until a new person is selected.

What are your current job duties?
Due to my dual roles now in separate managerial functions, I supervise a total staff of 14.  The Editorial Staff encompasses 6 professionals; Disclosure encompasses 8 individuals including six specialists and two administrative professionals.  Not only do I manage the work of all those individuals, I also assist my Director in a host of unrelated jobs including job postings, budget, purchase card approvals, and other admin functions.

What is the most common FOIA request you receive?
Requests for supervisory information about banks and federal savings associations.

What is the most unusual FOIA request you have ever seen?
A well-known individual had made a request to a much larger agency.  Oddly enough, that agency referred a small universe of documents that were from the OCC.  At the time, that other agency had a backlog of over 5 years and his request was right at the 5-year mark when it was referred to me.  We processed the request well within the statutory deadline.  A few days later, the famous requester called me personally to complain about the handling of his request.  I calmly explained that I understood his frustration, but that we responded promptly upon receipt of the referral from the other agency.  I then remembered that we had a “PUBLIC FILE” on his case and asked if he was aware of that.  He was shocked.  I asked if he’d like that…and he said yes.  I requested he send me a request for it, but that I would get the documents back from the Federal Records Center.  I photocopied the entire file and sent it to him at no charge.  He was totally thankful to have received that material and was amazed that we had such a file and that he got it so promptly.  I really felt good to be able to help him.

Of all the FOIA requests that you have worked on, which attracted the most media attention?
There have been many:  information about bank failures and the “too big to fail doctrine,” specific “bad actors” at specific banks, documents relating to the “independent foreclosure review,”  documents about former senior OCC officials,  the S&L bailout, the Clintons and Whitewater, are a few.

What do you like and not like about working in the FOIA field?
I really enjoy the interaction with the public.  At the end of the day, I like feeling as though I have helped in some small way.  The thing I really don’t like is that FOIA always seems to be at end of everyone’s food chain.  It only becomes a major issue when something happens negatively.

Which FOIA exemption or privilege do you find the most challenging and why?
The OCC is a pretty transparent organization.  We make a lot of materials publicly available on our Web site proactively.  The few denials we do are generally done under the authority of Exemption (b)(8).    My staff and I work very hard to make sure we don’t abuse our right to use it.  

Where were you born/grow up?  
I’m a native of Huntington, WV.

Where did you go to school and what did you study?  
I went to Marshall University, Huntington, WV.  I studied counseling and rehabilitation. 

What was your first job ever?  
At a big box department store that was locally owned and operated.  What did you like or not like about it?   All I will say about it is that I hated working there and lasted for three months.

What do you like to do in your spare time?  
I serve on the Board of Directors of my Homeowners Association.  I also serve as the Vice Moderator at the Metropolitan Community Church of Northern Virginia, Fairfax VA.   My passion is photography and videography.  I’ve shot weddings and other special events.  

If you could meet any historical icon, of the past or present, who would it be and why?  
Perhaps Abraham Lincoln because he created The Office of the Comptroller of the Currency in 1863.  

What is your favorite book?   Shelby Foote’s Civil War trilogy.  

Favorite movie?  Gone With The Wind.  I think I see a trend…I’m a real Civil War buff.  Anything Civil War gets my attention.

What are you really bad at that you’d love to be great (or better) at?  
To focus better.  I suffer from Attention Deficit Disorder and it can be challenging.

FOIA Focus: Dione Stearns, Assistant General Counsel for Information and Legal Support, Federal Trade Commission

FOIA Focus (2015-16)Allan BlutsteinComment

How long have you been working in the FOIA field?   

10 years.

Where did you get your start and what did you do?

The Office of Information Policy, formerly the Office of Information and Privacy.  I adjudicated FOIA/PA appeals from all of DOJ’s component’s initial FOIA/PA determinations.

When did you start at FTC and how did you find your way there?

I started in January 2012.  I noticed the job on USAJOBS and applied.

What are your current job duties?

I oversee the FTC’s FOIA Office.

What is the most common FOIA request you receive?

We frequently receive requester’s complaints.

What is the most unusual FOIA request you have ever seen?

The most unusual FOIA request I received sought information on everything from our Consumer Sentinel Database, which has over 22 million records.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage?  

Google cases.

What do you like and not like about working on FOIA matters?

I like that it is a specialized area of the law.   I do not like unreasonable FOIA requests.

Which FOIA exemption or privilege do you find to be the most challenging and why?

Exemption 4 is the most challenging because it requires you to understand something about the business.

Where were you born/grow up?

Philadelphia, PA.

Where did you go to school and what did you study?   

Howard University, where I studied Communications.  I went to Catholic University Columbus School of Law for my JD.

What was your first job ever?  What did you like or not like about it?

My first professional job was working at NBC 4 right out of college.  I wrote promotions for the Promotion department.  I liked working with the newscasters.

What do you like to do in your spare time?


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

Oprah Winfrey because she is self-made billionaire. 

What is one of your favorite books?   Movies?  

My favorite movie is Gone with the Wind.  I do not have a favorite book because I like many of them.

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

Making small talk.

FOIA Focus: Vern McKinley, Attorney, Consultant, Author & FOIA Requester

FOIA Focus (2015-16)Allan BlutsteinComment
Vern McKlinley, east Chicago.png

From 1985 to 1999, you worked at the Board of Governors of the Federal Reserve (Fed), the Federal Deposit Insurance Corporation (FDIC), the Resolution Trust Corporation (RTC), and the Office of Thrift Supervision (OTS).   What were your roles there?   Were you exposed to FOIA in any way?

I held a range of positions from examining banks at the FDIC; to acting as a research assistant to economists at the Fed; to overseeing a financial reporting group at the RTC; to acting as a legal advisor on capital regulations at the OTS.  I had some exposure to FOIA at the RTC. My section was responsible for drafting the RTC’s financial statements and responding to audit questions from the General Accounting Office (GAO, later renamed Government Accountability Office); and issuing a number of reports for the Congress, the GAO, the Office of Management and Budget and the Congressional Budget Office. So we received FOIA requests for data on the RTC’s operations from the agency’s FOIA office.  We were under a lot of scrutiny during that time, as we were spending tens of billions of dollars on resolving broke savings and loans and not many people understood why that was the case.  There were a number of scandals of the “waste, fraud and abuse” variety during those years at RTC.  I also got to know one of the people who responded to FOIAs for RTC and remember him complaining about people who were always trying to break the next big scandal.  I guess I filed all those memories away for later use.

 When did you make your first FOIA request and what were the results? 

Like everyone else as the fall of 2008 unfolded, I looked on in horror at the panic being displayed by the financial agencies. I had worked on issues for addressing troubled financial institutions and bailouts my entire career, so to me it seemed they had no clue what they were doing and their explanations for their actions did not making any sense.

So I started pulling together some of my thoughts to publish an analysis on the bailouts with a colleague of mine.  As part of that I submitted a few standard FOIA requests for information regarding why they did what they did.  The Federal Reserve in Washington ignored my request and the FDIC gave me documents, but they were so heavily redacted that they were incomprehensible.  I knew I was on to something when they were so opaque in answering some basic questions about why they did what they did.  The analysis was published before I got anything of substance from the Fed and FDIC, which required suing both of them in federal court as joint defendants.  Eventually I did get some useful documents after fighting the agencies in court for a few years and that led me to the conclusion that the underlying analysis for the bailouts was just seat-of –the-pants and ad hoc.

On the Fed component of the lawsuit, Judicial Watch (my attorneys) and I were fighting the breadth of the deliberative process exemption (discussed further below) and took this issue through the district and appeals court and ultimately petitioned the Supreme Court to limit this massive loophole for the agencies. But, as you probably know, the courts generally give deference to the agencies on these matters and the Supreme Court was no different and they denied cert.

On the FDIC component of the lawsuit, they eventually disclosed the documents to me after the Wall Street Journal editorialized on my efforts. The FDIC originally released a document that was mostly whited out. Ultimately I received the full document without redactions. In my book on the financial crisis, Financing Failure, I do a side-by-side comparison of the redacted and un-redacted documents.  If you compare the two documents, the before and the after, you can tell why they did not want to disclose the details. The underlying analysis was incredibly weak, embarrassingly so.

You brought a total of six FOIA lawsuits between 2009 and 2012 seeking various financial records, including those maintained by a few of your former employers.  Can you tell us what happened? 

About the time I initiated that first case, which was focused on just two of the bailouts, I had decided to do a book on all the bailouts.  So I filed further requests and started a full cycle of cases against the FDIC, the Fed and the Federal Housing Finance Agency (FHFA) to compel release of details on other bailouts, again with the help of Judicial Watch. 

Beyond the case mentioned previously, I also sought documents from the FDIC on bailouts of Citigroup, Bank of America and the Temporary Liquidity Guarantee Program.  That case was sent back to the agency to supplement its responses and the judge verbally spanked the FDIC, at one point calling their argument “baseless” and at another point saying he was “troubled” by aspects of their response. 

In a case against the FHFA, the agency was ordered to produce documents regarding the choice to place Fannie Mae and Freddie Mac into conservatorship for review.  Another case against the Board of Governors of the Federal Reserve requesting American International Group (AIG) and Lehman Brothers-related documents, resulted in the release of about 2,388 pages of redacted documents.  I had a few other cases in an additional cycle of litigation, but it did not seem that we were making much progress given the resources expended, so Judicial Watch dropped the cases on my behalf.

 In 2012, you authored Financing Failure:  A Century of Bailouts.  How much of the book incorporated records you obtained via FOIA?         

 The lawsuits formed the basis for much of the evidence on the bailouts during 2008 and 2009 that I presented in the book and those documents I got my hands on were what made the book unique.  In the case of the books written by Secretary Paulson, Secretary Geithner and FDIC Chairman Bair, they all were working with asymmetric information advantages in putting their books together.  In the books by Bair and Geithner, it appears as best I can tell based on the evidence that they both left their agencies with documents (one might call it ‘stolen’ if one were so inclined) containing “non-public information,” without running any approvals through the required FOIA processes.  I find that to be quite outrageous, as they basically unilaterally picked and chose the documents they wanted for their book, without regard to FOIA restrictions and with no one from the agency reviewing them for FOIA compliance that your average observer would be subject to.  Judicial Watch and I have requested those same documents from the FDIC and Treasury and they were not released to us under FOIA as the agencies cited various exemptions or did not respond at all.

My book could not directly compete with those information advantages and I was not going to abscond with government documents.  But because I was getting my documents through FOIA requests and put all the effort into that process and not too many researchers were going that route, a lot of the details I disclosed were just not available elsewhere.  Obviously Paulson, Geithner and Bair were not inclined to disclose all the embarrassing details or anything that would make Treasury, the Fed, FDIC or FHFA look disorganized.  I should add though that Bair in her book was critical of many of the interventions by the government and the overall lack of an analytical basis for many of the decisions.

 If you could change anything about the FOIA, what would it be and why?

The deliberative process exemption, which allows agencies to label their internal discussions as ‘deliberative’ in nation, and allows them to prevent disclosure without giving their underlying reasoning.  As I mentioned, Judicial Watch took that issue through the District Court, Appeals Court and submitted a cert petition before the Supreme Court to try to broaden the capacity of requesters to limit or otherwise undermine the breadth of the deliberative process exemption by making the agencies show some harm to the decision-making process.

I spoke about my book and FOIA experiences in front of one group made up largely of people in the defense and intelligence community.  They were appalled at the fact that these financial agencies could withhold this detail through such an open-ended exemption, as compared to more justifiable reasons that documents are traditionally withheld, for example due to national security reasons.

You ran for Congress in 2008.   What was that experience like and would you ever consider running again?

Good experience overall as the district had an interesting makeup, extending from the Washington, DC suburbs out to the West Virginia border.  Definitely would not do that again as it is not worth it to spend that much time and money again unless I have a real chance of winning and right now I don’t.  Given my political philosophy, unless I move away from the military-industrial and big government complex of the Northern Virginia suburbs and exurbs, I have absolutely no chance with another run.

You grew up in Chicago and attended the University of Illinois at Champaign-Urbana before moving to the D.C. area.  Who are you rooting for if the Cubs and Nationals play for the pennant?            

Definitely the Nationals.  My son has made me a Nats fan after a hiatus for me from watching baseball that lasted from about 1981 to 2011.  Plus I grew up on the Southside of Chicago, so I was a White Sox fan growing up and would not consider rooting for the Cubs, even if it has been 107 years since they won the World Series.  Now, a Nationals and White Sox World Series would be a tougher decision, but would probably still go with the Nats.

What was your first job ever?  What did you like or not like about it?

I worked in a grocery store in suburban Chicago during high school.  I chased down grocery carts in the parking lot, bagged groceries and cleaned the employee break room, including the toilets.  I will let you guess which of those tasks I did not like.

What do you like to do in your spare time?

We have two pre-teens, so when I am not working, or drafting a policy analysis or doing research for a book, we are usually attending their sports practices and games (soccer, softball, basketball).

What is your most memorable travel experience?

I have been lucky enough to have the opportunity to do a lot of traveling for my consulting and legal work to some countries that not many Americans have gone to, including Libya, Afghanistan, Sudan, Tajikistan, but the most memorable experience for me was Armenia which is where I met my wife.

What are some projects that you are working on now? 

There is a great ongoing effort for governments around the world to be more prepared for the next financial crisis. In that vein, I have advised in a number of countries that are developing their crisis preparedness and management capacity.  I am also starting the research for a second book, which may involve some further FOIA litigation.

FOIA Focus: Michael Bekesha, Attorney, Judicial Watch, Inc.

FOIA Focus (2015-16)Allan BlutsteinComment

How long have you been working in the FOIA field?

I first “discovered” FOIA in my administrative law course during my second year of law school.  I think we spent 10 minutes on it, and I did not give it much thought.  I then applied to various organizations in D.C. for a summer internship and I was fortunate enough to receive an offer from Judicial Watch, which uses FOIA frequently.  After I graduated from law school and took the bar, I started working full time at Judicial Watch as an attorney.  In August, I will have been at Judicial Watch for 7 years (including my summer internship).

What are your current job duties at Judicial Watch?

Unlike the traditional practice of law, current events usually dictate my activities.  With respect to Judicial Watch’s FOIA work, I assist the Research & Investigation department in developing investigations and submitting FOIA requests, review FOIA requests to determine whether they are litigation worthy, and handle FOIA lawsuits from start to finish, which, on two occasions, meant everything from drafting the complaint to filing the cert petition.  In addition, I work with other organizations, the news media, and Congress on issues uncovered by Judicial Watch’s FOIA work.  Besides FOIA, Judicial Watch also litigates rule of law issues.  Most recently, on behalf of a D.C. taxpayer, I filed suit seeking to enjoin members of Congress and certain congressional staffers from purchasing health insurance through the “Small Business Exchange.”

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

Any time an agency produces all responsive records in their entirety, I think it is unusual.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage? 

You never know what the media is going to cover.  You may think the records you received are of the utmost importance; however, they barely get noticed.  Two FOIA matters stand out:

1.  After the death of Senator Ted Kennedy, Judicial Watch, like many other entities, submitted a FOIA request for the late senator’s FBI file.  Judicial Watch subsequently sued.  During litigation, the FBI eventually released one page that it had been withholding under a claim of national security.  In it, the FBI had noted that, “While Kennedy was in Santiago he made arrangements to ‘rent’ a brothel for an entire night.  Kennedy allegedly invited one of the Embassy chauffeurs to participate in the night’s activities.”  When we released the record to the public, it went viral.

2.  Of a completely different nature, Judicial Watch requested and sued for the post-mortem images of Osama bin Laden.  We challenged the withholdings all of the way to the Supreme Court.  News media organizations around the world covered our legal filings the entire way.

What do you like and not like about working on FOIA matters?

FOIA exposes you to many different components of the federal government.  One day I was litigating records concerning the financial bailouts.  The next day, I was briefing whether the post-mortem images of bin Laden were properly classified.  I also sent a request for the audio files of Beyoncé singing the national anthem after it was revealed that she lip-synced her performance at the 2012 Inauguration.

FOIA is frustrating.  Although it is supposed to favor the requester, it doesn’t -- especially when it comes to the courts.  FOIA really is becoming more of a withholding statute than a disclosure statute.  Congress needs to rein in the Executive Branch’s abuse of the various FOIA exemptions.

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

Once a requester sends a request, he is left in the dark.  A requester is just stuck waiting for the agency to get back to him.  There needs to be more transparency and accountability in the process.

If the government would release any document(s) you requested, what would you ask for and why?

There is not one particular document I would ask for; however, I generally would love to see the records of deliberations about whether to release certain records.

Where were you born/grow up?

I grew up in Framingham, Massachusetts, which is just 20 miles west of Boston.

Where have you attended school and what did you study?  

I was a political science major at Northwestern University in Evanston, Illinois.  I attended law school at the University of Missouri-Columbia, School of Law.

What was your first job ever?  What did you like or not like about it?

Kelly’s Roast Beef and Seafood.  I worked the register, but also other duties as needed.  I liked it because it involved problem solving and required me to think quickly on my feet.

What do you like to do in your spare time?

I am a season ticket holder of the Washington Nationals.  I am also heavily involved as an alumni volunteer with Northwestern University in both alumni relations and development.

What are some of your favorite books?  Television shows?

President Obama was just asked this same question.  The news media analyzed his answers to determine what it means about him.  I don’t know what my answer means, but I don’t read as much as I should or I would like to.  However, I always enjoy John Grisham’s latest novel.

Favorite television show is easy: Sports Night and -- like most of my generation -- The West Wing.

What is your most memorable travel experience?

I love Rome.  One minute you are stepping back into ancient Rome.  The next minute you are enjoying its modern culinary scene.  Lots of small neighborhoods in this ancient city.  You just don’t get that in the U.S.

FOIA Focus: Mike Bell, FOIA Public Liaison, U.S. Dep't of Health & Human Services

FOIA Focus (2015-16)Allan BlutsteinComment
                                                                                             FOIA Focus: Mi  ke Bell

                                                                                            FOIA Focus: Mike Bell

How long have you been working in the FOIA field?

I first worked with FOIA in 2005 when I became a contractor for the Office of the Secretary of Defense.  I began as a document scanner, but was soon processing FOIA appeals.

When did you start at HHS and how did you find your way there?

I began working at HHS in October 2013.  Previously, I was at the Department of Defense for seven years.  During the financial crisis, I worked as the FOIA Manager for the Department of the Treasury’s Office of Financial Stability.

What are your current job duties?

As the HHS FOIA Public Liaison, I do my best to help requesters when they have issues with the FOIA requests.  I answer their questions, provide updates and will push things along if I can.  My duties also involve a variety of other issues for the HHS OS FOIA Division, such as reviewing responses and formulating policies and procedures.

What is the most common FOIA request you receive?

Most of the requests received by my office seek records regarding HIPAA violations investigated by the HHS Office for Civil Rights.

What is the most unusual FOIA request you have ever seen?

At the Department of Defense, I once received a request stating that God was held prisoner beneath the White House helping the U.S. with its policies. The requester submitted a list of questions he wanted us to ask God.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage? 

I have worked on requests covering the prisoners at Guantanamo and requests regarding the Affordable Care Act.  They both received prominent media coverage.

What do you like and not like about working on FOIA matters?

I enjoy reading about history and current events.  Working on FOIA matters allows me to get first-hand knowledge of both.  I do not like the fact that I can’t respond to every FOIA request immediately.  FOIA workers are sort of the middlemen between requesters and the record holders and we can’t please both.

Which FOIA exemption or privilege do you find to be the most challenging and why?

Like many requesters, I find the (b)(5) deliberative process privilege to be the most challenging because it is not always readily discernible whether the disclosure of agency opinions or advice would likely cause harm. 

Where were you born/grow up?

I was born and grew up in Baltimore, MD.  I am a huge Ravens and Orioles fan.

Where did you go to school and what did you study?  

I attended Furman University in Greenville, SC, where I majored in political science.

Where did you start your professional career and what did you do?

After graduating from college, I joined the Air Force and went to Officer Training School.  I served for nine years, obtained a Secret clearance, and that led to me looking for a defense-related job when I left the military.

What was your first job ever?  What did you like or not like about it?

My first summer job in high school was for the Office of the Maryland Attorney General.  I was hired to spend my summer cleaning and organizing the file room for the Consumer Protection Division.  I liked it because I was left alone to figure out the best way to organize it.

What do you like to do in your spare time?

I am a huge sports fan and enjoy reading and running.  I am also trying to be a better home cook.

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

Alexander Hamilton has always been my favorite historical figure.  He was a brilliant man and his contributions to the founding of the United States have always been underrated, even though I think that is changing and he is beginning to get his due.

What are some of your favorite books?   Movies? 

Hemingway is my favorite author, with The Sun Also Rises as my favorite.  I enjoy watching classic movies.  My favorite actors include John Wayne, Errol Flynn and Humphrey Bogart.  My favorite actress of all time is Myrna Loy. I have always loved The Thin Man series.

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

I have zero musical talent, so I always wished I could carry a tune or play an instrument.