The FOIA blog

Congressional Oversight of the FOIA

In my latest LLRX.COM article, I take Congress to task for its failure to really oversee agency FOIA operations.  It seems to me that along with passing FOIA legislation, Congress must hold agencies truly accountable for their FOIA operations--by holding real hearings of agency personnel responsible for funding and personnel decisions relating to FOIA.

Maybe I've seen too many Frank Capra movies, but if Congress can delve into whether millionaire atheletes took performance enhancing drugs, I think it can found the time to see why agencies don't have enough personnel processing the FOIA requests made to them.  It seems to me that efficient FOIA Operations are as important as who was attending Jose Canseco's party.

DOJ Sued on Request for Privacy Officer Contacts With Google

The Electronic Frontier Foundation ("EFF") has filed this lawsuit against the Department of Justice for records concerning its former Chief Privacy Officer Jane Horvath and contacts she had with Google before she left the DOJ to become Google's Senior Privacy Counsel.

As of the date of the filing of the complaint, the Department of Justice had merely acknowledged the EFF's request; it had not stated whether it would deny records or release them or do a little of both.  Now that the request is in Court, it is more likely that DOJ will have to act on the request in a timely manner rather than sit on it as it appears it has done since receiving the request in August of 2007.

USDA Farm Subsidy Program Information Ordered Released

The United States Court of Appeals for the District of Columbia has reversed a lower court decision and ordered the United States Department of Agriculture to release information pertaining to its Farm Subsidy Program that it had previously argued was exempt pursuant to FOIA Exemption 6.

Circuit Judges Griffith and Tatel found that the public interest in the release of the information was greater than the privacy interests in the information demonstrated by the government.  The public interest, in this case, the ability for the information to shed light on the USDA's administration of its subsidy and benefit programs were greater than any privacy interests detailed by the USDA.  The lower court had found the opposite, that the privacy interests were greater than the public interests.

Judge David Sentelle dissented from the opinion because he believed that the privacy interests were, on balance, greater than the public interest.

This is a noteworthy opinion in that it is rare that a Court, especially a Circuit Court, will order the release of records the government is claiming are covered by FOIA's privacy exemptions (6 and 7(C)).  It will be interesting to see how this case is used as precedent in the future.

Line Item Prices Held Exempt

Recently the District of Columbia Circuit Court of Appeals held that line item prices can be exempt pursuant to FOIA Exemption 4.  The Unfair Business Practices Blog has more analysis of the decision.

Pentagon Sued Over Classified Documents; I'm Quoted

The Department of Defense has been sued by Hogan and Hartson over documents relating to the U.S. military's cooperation agreement with Kuwait.  This article analyzing the complaint by the N.Y. Sun's Josh Gerstein quotes me about the uphill battle plaintiff's will have in getting the court to overturn the government's classification decision.

Update:  As soon as the lawsuit was filed, it seems to be over.  According to the NY Sun, the lawsuit was dropped due to Kuwait's displeasure over the prospect of the agreement being made public.  The article also gives background as to what they agreement was sought in the first place.

Sunshine Week Keynote Speaker Set

Tom Curley, AP President and CEO will be the keynote speaker during a Sunshine Week dinner on March 18 at the National Press Club.  The Sunshine Week website can be found here.

Presidential Candidates and Open Government

Here's an article from the Dallas Morning News on the four major remaining Presidential candidates and their positions on open government.  I have to guess based on the last seven years that, no matter who the next president is, his or her administration will be more transparent than the current president.

PA Open Records Law Signed

I've been writing about the proposed Pennsylvania Open Records law since this blog started in the late summer of 2006.  I'm very happy to let everyone know that late last week Governor Ed Rendell has now signed the bill into law.  This new law is a major change and advancement in open public records.  More details about it can be found here.

Law Review Article Concerning FOIA

The Lewis and Clark Law Review has this article entitled "Rays of Sunshine in a Shadow "War": FOIA, the Abuses of Anti-Terrorism, and the Strategy of Transparency by Seth F. Kreimer. 

Friday Rant

Today I'm going to complain about FOIA Liaisons.  Not the concept, not anyone in particular, but about the fact that what is supposed to be a good idea is just one more way to make a FOIA requester crazy. 

Each agency is now required to have a FOIA Liaison pursuant to Executive Order 13,392 (which I call the Executive Order meant to beat back any FOIA legislation--the legislation ultimately went through).  And each agency has appointed a FOIA Liaison and you can usually find their phone number on the agency FOIA website.  The liaison is supposed to be the person you can call to find out the status of your request, or in many cases, the person I call to see if the request ever made it to the FOIA Office (many FOIA Offices have forgotten the art of the timely acknowledgment).

Lately however, when placing a phone call to a FOIA liaison (between regular working hours), I find myself getting a message and am told to leave a message.  Which I do.  However, in many cases, I never hear back from the Liaison.  This, of course defeats the purpose of the position in the first place and leaves me with the following question:  "If a FOIA liaison's phone is placed in in a forest, and no one hears it ring, does it really help FOIA requesters?"

Please leave a message at the sound of the tone...

Update:  An agency contacted me to correctly point out that "the FOIA Public Liaison is an official 'to whom a FOIA requester can raise concerns about the service the FOIA requester has received from the [FOIA Requester Service] Center, following an initial response from the Center staff.'  The FOIA Requester Service Center is 'the first place that a FOIA requester can contact to seek information concerning the status of the person's FOIA request and appropriate information about the agency's response.'  Therefore, we appreciate it if requesters would contact the FOIA Requester Service Centers first.  It is not the intention of the Executive Order, nor the intention of Congress, that the FOIA Public Liaison be first person the requester contacts to determine the status of the request."

That's fair--however, I've had the same problems with FOIA Requester Service Centers (in the case that caused me to rant in the first place, it was the Service Center I actually called and am still waiting to hear from) and whether or not you incorrectly contact the Liaison first, they should still return the call (in my case, the problem is bigger than for just one request--agencies should send out acknowledgment letters so I have a tracking number to ask about, rather than make me investigate what my tracking number actually is).