The FOIA blog

EPA Attempting To Improve Transparency

The Examiner reports on the EPA's attempts to improve its performance in transparency, including FOIA.  The Acting EPA Administrator has circulated an agency wide memo requiring training for agency employees in records management and FOIA.

If there are any EPA employees reading this (or anyone else for that matter), the American Society of Access Professionals (ASAP) has upcoming comprehensive FOIA and Records Management Training in May.  More information on the training can be found here.

FOIA Release Reveals DHS Worried About Media Coverage

Infoshop News has this piece that describes documents received from a FOIA request about Occupy Wall Street.  According to the Article, the Department of Homeland Security was worried about the media coverage it received during the Occupy Wall Street movement.

D.C. Court of Appeals Issues Major FOIA Decision

The United States Court of Appeals for the District of Columbia Circuit has issued a major FOIA decision in CREW v. FEC. [ed. note - I do legal work for CREW but was not involved in this decision]. 

The decision decides what constitutes a FOIA determination and that decision is adverse to the one espoused by the government.  Basically, a determination requires the agency to actually advise a requester what is specifically going to do -- i.e release documents fully, release with specific exemptions and it is not enough for an agency to say we are going to process and release the records.

Hopefully, the Attorney General and his staff will make note that those under his command espoused a position directly in conflict with policy guidance he and President Obama set forth four years ago and deal with it accordingly.   

FBI Denied 29 Month Processing Stay

One of FOIA Requesters biggest complaint is the time it takes for an agency to process the request.  Often, requests will go into litigation and if a timetable for the agency to process is not worked out between the parties, the government will seek a stay of the case to allow it to process the records.  A number of factors will be weighed by te agency in seeking the amount of time it requests to process the records.  The agency will then file a declaration seeking the court's permission for the delay -- this is called an Open America declaration.  Rather than bore you with a synopsis of where that came from, suffice it to say an agency must show that its backlog causing the delay was unexpected and that its making progress in reducing the backlog.

In a recent case, the FBI asked for a stay of 29 months to finish processing.  United States District Court Colleen Kollar-Kotelly had other ideas, finding that the FBI failed to meet the requirements that would allow it to get a full Open America Stay and ordered the FBI to finish processing the documents all non-classified records in the request by August 1, 2013.

There are other similar cases pending in the District Court and it will be interesting to see if this decision affects the outcomes of those cases.

FOIA As A Reporting Tool

Jason Leopold of Truthout has this important piece on why FOIA is a valuable, maybe the most valuable reporting tool, that there is.

Sunshine Week Over; Clouds Return

Sunshine Week has now passed.  Once a year, a number of organizations, individuals and government entities celebrate openness and discuss problems in the transparency world.  Last week, like previous Sunshine Weeks, had major newspapers such as the Washington Post covering the events -- and the Senate Judiciary Committee holding a hearing on Open Government.  This years Sunshine Week even included the release of a bipartisan draft FOIA amendment bill by the House of Representatives.

However, now that Sunshine Week is over, many of these voices will, like a groundhog on February 2, go back into its hole to wait until next year.  Big media companies have slowed down their use of FOIA as demonstrated by this report from the FOIA Project.  While there is no definite reason why this is, I believe that the reporters and researchers who make the requests and the legal staffs that will prosecute the legal parts of the requests are not always on the same page.  Until the media companies figure out their own administrative issues with pursuing FOIA requests, this downward trend will continue.  Congress talks a good talk about openness, but the elephant in the room right now is the sequester -- and it doesn't seem to be going anywhere.  During a time when FOIA operations in agencies need to get additional funds to upgrade technology and hire and train competent staff, the sequester only pinches these needs further.  So as much as a Congress member may claim to be in favor of openness and transparency, these claims without the funds to achieve that goal are nothing but empty words.  Finally, the Executive Branch and the administration continue to claim great breakthroughs in openness, such as this recent DOJ testimony.  However, as the House Committee on Government Oversight pointed out with its recent letter to the Department of Justice, there are many areas that could be improved.

So the clouds have returned to the blue sky of transparency.  Hopefully, those voices that were heard last week will stay out of their hibernation a bit longer this year and work on the important issues that have been brought up and discussed during Sunshine Week.

CIA Loses Drone Glomar Appeal

A three judge panel of the United States Court of Appeals for the District of Columbia has reversed and remanded a lower court find that the CIA could issue a glomar response ("neither confirm nor deny that records exist") pertaining to a FOIA request for records about drone strikes.

The Blog of the Legal Times has this analysis of the case with a link to the Court's opinion.

National Freedom of Information Day - March 15, 2013

Open the Government.org is hosting a full day seminar tommorow concering open government issues including FOIA -- more information can be found here.  Even if you can't be there, they will be live webcasting the event.

Bipartisan House FOIA Bill To Be Introduced

More breaking Sunshine Week news:

Representative Darrell issa (R-CA) and Elijah Cummings (D-MO), the Chair and Ranking Minority Member of the House Committee on Oversight and Government Reform have introduced a bill amending the FOIA.  The Examiner has details on the bill, including a link to a draft of the legislation.  

The major takeaway of the amendments is the additonal responsibilities given to the Office of Government Information Services("OGIS") which is located in the National Archives and Records Administration.  OGIS was set up in the 2007 FOIA Amendments and was largely to be a FOIA Ombudsman mediating disputes between agencies and requesters.  The draft bill has it, among other things, answering to Congress on FOIA issues, being a assistant co-chair with DOJ's Office of Information and Privacy on a FOIA Officers Council.  Other items in the bill are a codified period of time for requesters to file administrative appeals (90 days) and an adoption of the foreseeable harm standard in processing requests.

It will be very interesting to see if this moves in the House and if the Senate introduces a similar bill.  Other things to watch for are whether there will be a move by the administration to fix the hole left by the Supreme Court decision narrowing Exemption 2 or if the requester community will add items from its own wishlist (such as a time limit on the use of certain Exemption 5 privileges).  

2013 DOJ FOIA Guide

The first portion of the 2013 DOJ FOIA Guide has been released.  It's only a small part of the entire Guide but its a start.  The Guide will only be available online according to the Department of Justice.