The FOIA blog

First Ruling on Attorney Fees Provision of OPEN Government Act of 2007

According to the Department of Justice, the first decision on whether the attorney fees provision of the OPEN Government Act of 2007 has been made by the District Court for the Western District of Missouri.  In this decision, the court held that the attorneys fee provision of the Act is not retroactive and did not take effect until December 31, 2007.  So under this finding (which is only binding in the Western District of Missouri but may be looked at by other district courts) any opinions, findings, or document releases that would make a plaintiff eligible to attorney fees would have had to come about after December 31, 2007 and not prior to that date.

Article on Bush Open-Records record

Alternet has article about the current administration's record on FOIA since it took office in 2001.  It's a fairly broad look at how the Bush administration has looked at various FOIA issues.

USDA Must Demonstrate To Court Why It Shouldn't Be Sanctioned

In a ruling by United States District Court for the District of Columbia, Judge Emmitt G. Sullivan has determined that the United States Department of Agriculture ("USDA") conducted an adequate search for responsive records on a request for the official calenders of upper level USDA officials.  However, that determination isn't the important part of the decision--that is the court's order that the agency must detail the steps it has and will take so that records in cases like this will be found in the future.

Plaintiff Consumer Federation of America sought the calenders to see if the officials had met with industry officials on USDA's proposed regulation on Listeria.  The Court had originally ruled that the calenders were not agency records, but that decision was overturned by the D.C. Court of Appeals.  Ultimately, USDA could not locate the responsive records.

The twist in the case is that getting the USDA to conduct an adequate search for the records was like pulling teeth for the plaintiffs.  Additionally, it appears that the USDA did not take the necessary steps to protect the records so that they could be searched, but in hard copy and paper.  Thus, the Court took plaintiff's motion for sanctions on USDA under advisement and ordered USDA to provide a declaration detailing (1) the specific steps the agency will take when responding to a FOIA request, particularly one including electronic documents; and (2) the steps, if any, the agency has taken to correct the problems that less to the loss of responsive documents in the case. 

The Lights Are On, But They Aren't Home

Last week I quoted Tom Petty, this week I paraphrase the late great Robert Palmer.  It appears that FEMA (remember them--the agency once headed by Michael "Heckofajob" Brown) really doesn't understand, like or get the FOIA.  According to the AP, The Baton Rouge Advocate asked for records about the government purchased trailers and mobile-homes used to house victims of Hurricane Katrina.  Rather than merely grant the fee waiver usually given to newspapers, FEMA is demanded $209,000 for duplication costs on the over 2 million pages of responsive documents.  And FEMA insists that none of the responsive records are available electronically.

Unless someone higher up in the FEMA food chain wakes up, this one is going to litigation.  Even if they eventually win the litigation, they will have taken yet another public relations hit by appearing that they don't want the public to know what the agency was doing in one aspect of its response to Hurricane Katrina. 

Clinton Schedules Released

As a result of Judicial Watch's FOIA lawsuit, the daily schedules of Hillary Clinton when she was first lady have now been released according to the Associated Press.

I find it to be ironic, yet fitting, that the release came right in the middle of Sunshine Week.

Audit: Bush EO Failed to Deliver Results

According to the National Security Archive, President Bush's Executive Order (EO) that was to push agencies to improve their FOIA backlogs has failed to deliver the desired results.  The survey found that the EO did improve customer service at agencies, but failed to improve backlogs or improve compliance with electronic FOIA requirements compliance.

I'm not surprised by these results.  As I've said many times, like a broken record (that probably annoys many readers), without increased funding for FOIA Operations, FOIA backlogs aren't going to improve very much (if at all).  Basically, you can't get blood from a turnip.  If agency X has 10 people working FOIA, they can only do so much more than they are already doing, unless of course they are so incompetent that you can replace them with 10 different people who are all competent.  That of course is not the case in FOIA Operations.  So unless Congress and the Administration increase funding for FOIA Operations backlogs won't show any great decreases.

As to compliance with the electronic requirements of the FOIA, I think a dedicated employee at the Department of Justice who specializes in these issues is something that is sorely needed.  This individual would work with agencies on their websites, showing them what they need to post there to be in compliance with the law.  And there is precedent for this position, as AG Reno created a position during her tenure for an individual to work with agencies on their FOIA backlogs.  The position was abolished during the current administration.

IRS Wins and Loses on Decison on Deliberative Process Privilege

In a detailed decision that really explains what the deliberative process privilege is for, United States District Court for the District of Columbia Judge Rosemary M. Collyer has ordered the IRS to release certain documents that she did not consider exempt under the deliberative process privilege.  The detail about where documents were or were not involved in agency policymaking will likely make it an oft cited decision in the future.

The case revolved around the law firm Mayer, Brown, Rowe and Maw, LLP's attempt to get documents from the IRS about Lease-in/Lease-out transactions.  The case originally dealt with 30,000 documents but at the time of the opinion had been narrowed to only 27.

Two major issues were addressed in the opinion.  The first was the plaintiff's contention that the government must establish evidence that alleged predecisional documents were not incorporated into a final document or were not part of internal agency secret or working law.  While the IRS claimed they didn't have to claim this, the Judge was able to sidestep the issue by finding that the IRS statements on the issue established that there was"an absence proof that these documents had been adopted, directly or indirectly, as secret or working law."  Thus, the judge granted summary judgment for the IRS on the issue.

Next, the court looked at individual documents to determine if they were protected pursuant to the deliberative process privilege.  The court found that a draft press release as well as a slide meant for briefing a wide IRS audience once a revenue ruling was issued were not protected by the deliberative process privilege because they were not associated with any agency policy formulation.  Further, draft letters to the Norman Mineta, then Secretary of the Department of Transportation were held not deliberative because "interagency politics is not the stuff of agency policymaking."

Documents where no author could be identified as well as handwritten notes where the author was unknown were also held to not be protected pursuant to the privilege.  It was not established that these documents were used in the agency's decision making process and therefore were not protectible.

The IRS was allowed to withhold some documents.  Task force recommendations were protected as well as handwritten notes of a known author that were used in the decision making process were held to be exempt.

   

Sunshine Week 2008

It's Sunshine Week--so this week you may notice editorials in newspapers around the country about the need for government openness.  I would also imagine you'll see some statements from the presidential candidates and other federal and state candidates about their strong interest in government transparency.

Of course you won't see any increased funding for federal agency FOIA operations. 

And, as always, I'll bring you links to the most interesting Sunshine Week articles as I find them.  Here's one from the Journal and Courier Online from Lafeyette and West Lafeyette Indiana

The Waiting is the Hardest Part

Tom Petty wrote "the waiting is the hardest part," and I really don't imagine that he was alluding to FOIA requests, but as this article in the Hill newspaper shows, the song clearly fits.  Some FOIA requests have languished for up to fifteen years.

Part of me can't imagine how agencies let these requests sit around--however, the part of me that worked for the government knows exactly how it happens.  These cases are not easy, they get shuffled around and no one will stand up and make the final decisions that need to be made to get the requests out the door.   

But as Tom Petty said to those of us in the FOIA community:

"The waiting is the hardest part
Every day you see one more card
You take it on faith, you take it to the heart
The waiting is the hardest part."

Exemption 3 Transparency Legislation Introduced

Senators Patrick Leahy (D-VT) and John Cornyn (R-Tx) have introduced legislation aimed at making legislation more transparent when new Exemption 3 statutes are created.  This proposal was in last year's FOIA amendments passed by the Senate but was stripped out in the House version of the bill.  Sen. Leahy's press release can be found here.

Of course, and I know I sound like a broken record, but there is no mention of adequately funding FOIA Offices anywhere in Sen. Leahy's press release.