The Daily Caller has this on a lawsuit filed by a number of parties against the FBI on FOIA requests seeking FOIA case processing notes. The Court decision is 63 pages, and while the plaintiffs' won't likely get everything they seek, the takeaway from the decision is that the FBI's current FOIA management will have to rethink how it processes requests for FOIA case processing materials.
Jurist reports on the Second Circuit's decision that the National Security Council, which operates out of the White House, is not an agency subject to FOIA. The DC Circuit had reached this conclusion in 1996 meaning that there is no split in the Circuits that have issued opinions on the matter.
The Washington Post has this on the House Oversight Committee's look at the State Department's handling of FOIA Requests. The tone of the article is that it is the current administration may be the problem in the State Department's current FOIA woes. From years of experience, I can state that the State Department FOIA problems were the same in the previous administration - I sued them on behalf of a client that was the subject of repeated delays and incorrect responses. That lawsuit, which sought records from the 2005 time period also revealed that, among other things, the agency had a poor e-mail retention policy. The same people who were in charge of record retention and FOIA then are still in charge now. While the House and the media spin the story as a political one, those who regularly deal with the State Department FOIA Office know it is not a political issue. It is a bureaucratic and a budget issue.
The United States Court of Appeals for the District of Columbia Circuit has ruled that a small non-profit is eligible for attorney fees under FOIA - The opinion, Download NCSopinion, found that the non-profit, National Security Counselors was not the same as a pro se litigant and was therefore not barred from receiving attorney fees in FOIA cases in which it has substantially prevailed.
Last evening, the House of Representatives passed amendments to the FOIA, many of which are very good. The Hill has more on the bill.
One thing the Hill doesn't discuss is that the amendments changes the attorney fees provision - from being discretionary to those who substantially prevail they are now mandatory. The problem is that the last FOIA amendments in 2006 took the payment of those attorneys fees from the Justice Fund for attorney fees and made them come out of FOIA office operating funds. The amendments do not change this - so if passed, any FOIA litigation that substantially prevails will be entitled to attorney fees coming directly out of agency FOIA operations. This may sound good in that those FOIA offices that are doing poorly will have an incentive to clean up their act; however, in reality it will likely mean that more money goes out to a few requesters who have sued, litigation increases and FOIA offices have to stop hiring and processing requests to make up the shortfall. Hopefully the Senate will look into this provision and make the necessary changes.
The Committee on Oversight and Government Reform for the House of Representatives has issued a FOIA Report that concludes that FOIA is broken.
I'd agree with the conclusion but disagree in part as to how the report gets there. I don't believe the White House is the reason the FOIA isn't working as effective as it should - the vast majority of FOIA requests have nothing to do with any topic, controversial or not, that the White House cares about. Further, the FOIA people at the Department of Justice are career, not part of the administration.
However, I do believe that both the White House and Justice could do much more to make the FOIA work better - and I believe that Congress can help that by holding serious hearings about the FOIA issues that are hampering FOIA effectiveness.
And finally, the one thing that can help FOIA Operations is more money going straight to FOIA Operations for employees, training, up to date computers, and search software.
Politico reports on the Inspector General Report on the State Department's FOIA Office and its failure to find emails pertaining to Hillary Clinton. The article states that the IG had previously issued a negative report on the FOIA Office's performance in 2012. It's interesting to note that the same people who were in charge of the FOIA Office in 2012 are still in charge -- and recent hires to improve staffing have all been internal hires rather than looking for those with a non-State Department view of the world that may actually improve FOIA performance.
The Cybersecurity provisions of the just passed omnibus budget deal that passed Congress had, among other things, a provision that allows information passed to the government from private companies to be exempt from FOIA requests. Rep. Justin Amash (R-MI) doesn't like the bill, and according to Brietbart, will introduce a bill to repeal it when Congress reconvenes in January. The repeal bill is a good example of a bill both sides of the political spectrum can agree on - let Congress work out a Cybersecurity bill that is transparent and actually protects cybersecurity rather than those companies in that field.
Late in 2015 amendments to the FOIA were nearing passage in Congress. However, various members of Congress popped up like whack-a-mole targets to slow down and eventually derail the bill. The Freedom of the Press Foundation made FOIA requests to the Justice Department for communications it had with Congress concerning the FOIA bills. Justice hasn't released anything and according to this article from BoingBoing, the Freedom of the Press Foundation has now filed suit for the records.