Here's some positive transparency news from Federal News Radio - The DOD Office of Inspector General has began making proactive disclosures of reports the same day they are issued to those inside the agency. Hopefully this will become a best practice across the spectrum resulting in both greater openness and less FOIA requests and costs.
The FOIAblog has been silent because I've been away teaching at the ASAP Workshop in Chicago. It was a great crowd and FOIA personnel in attendance got to gather knowledge from speakers and each other.
The FOIA world has marched on - and believe it or not, there is more than one FOIA request to one agency situated in Foggy Bottom that is of interest to the FOIA world. Last week, the GAO issued a report for the Senate Judiciary Committee concerning FOIA litigation costs. The GAO concluded that due to the record keeping practices of the government, FOIA litigation costs can't be determined. It's an interesting read and hopefully, agencies will be able to come up with some changes to figure out these costs moving forward.
The Reporters Committee for Freedom of the Press has released a survey of journalists on the longstanding FOIA rule that a release to one is a release to all. Most journalists generally support the rule, but many seek a delay in the release to the original requester to the release of the information to the rest of the world.
This debate has become a bit of a heated topic as the federal government moves to online portals for the administration of FOIA requests. These portals generally allow anyone to see what was requested and released in almost real time. Many journalists feel that they lose a competitive edge when the results of their releases are published to the public at the same time they get the information. However, the flip side of this argument is that journalists, as members of the news media, generally do not have to pay fees for the information where a member of the general public would have to pay for this information.
The Department of Justice is supposed to be reviewing this issue and is allegedly having a meeting with "journalists" in September. Of course, with the advent of the internet and changes made to the FOIA law in 2007, it's difficult to even classify who is a "journalist" in the FOIA world.
It's a big confusing issue and will continue to be debated for, at least, the near future.
Federal News Radio has this on a number of public interest groups speaking out against proposed FOIA exemptions in the 2017 National Defense Authorization Act. DOD has been trying to push these through for a number of years. Neither, the Judiciary Committee of the Senate and the House Oversight Committee have ever held hearings or discussed these proposals even though FOIA legislation is under those two committees' jurisdiction.
The Denver Post reports on a lawsuit filed against ICE and CIS which alleges that the immigration agencies are not following FOIA law as a standard practice. One quirk in Immigration status litigation is that there is no discovery, so the litigants must rely on FOIA to receive documents from the agency that is bringing an action against an individual (i.e deportation, immigration status, etc...).
If Congress ever has immigration reform legislation again, it would be a great idea to create a discovery process for these records and take them out of the FOIA-sphere.
The Fairfield Sun Times has this on a lawsuit against the Interior Department and the Bureau of Land Management for its failure to respond to FOIA requests as well as a broader law suit on the substantive issues of the FOIA requests.
Courthouse News has this on the D.C. Circuits clarification of what can actually be withheld concerning Pen Registers pursuant to Exemption 3 of the FOIA. The Court ruled that only the actual pen register order may be withheld pursuant to Exemption 3 of the FOIA - the FBI had attempted to withhold information about the pen register under the Exemption as well as the order itself.
Politico has this on the D.C. Court of Appeals decision concerning a case brought for records on Immigration Judges. The agency had made a blanket exemption on the names of Immigration Judges accused of misconduct and had redacted parts of responsive records because those parts of the records were considered not to be responsive to the request. Briefly, the Court found that while the names of the judges may properly be withheld in some cases, there is no across the board blanket exemption allowing for the redaction of the names. In other words, the agency will have to go through the privacy interest/public interest balancing test and if in litigation, will have to document its findings. Further, the court said that records found to be responsive needed to be processed under the FOIA, that certain parts of the records believed to be outside the scope of the response could not be redacted for that reason. In other words, they either need to be released or have one of the nine FOIA exemptions applied to them.
Politico reports that the State Department's request for 27 months to complete processing FOIA requests was denied by a federal judge in the District of Columbia; instead they have four months to finish the processing.
The FOIA requires requests to be processed in 20 working days. If that isn't met, and the case goes to Court, an agency can seek a stay under existing case law but must show that it is exercising due diligence in attacking its backlog of existing FOIA requests. In this case, according to the article, the State Department's own statistics showed a decrease in resources dedicated to FOIA processing. In order to receive extensions in the future, State must revamp the ways it runs FOIA Operations to demonstrate an increase in resources it puts toward FOIA processing.