The FOIA blog

Faster FOIA Bill Passes Senate

Senate Legislation named the Faster FOIA Bill has passed the Senate according to the Houston Chronicle.  As I have written on a number of ocassions, this bill does not make the FOIA any faster; it creates a commission that will come up with ideas to make the FOIA faster.  These ideas will then likely sit on legislation that goes nowhere.  If the Congress is really serious about speeding up FOIA processing they will fully fund FOIA Offices, hold real oversight hearings, and pass the numerous ideas that have already been proposed to make FOIA processing faster.  I note that no media outlet has yet asked any of the Senators pushing this bill how it actually makes FOIA processing faster.

On another front, Faster FOIA bill co-sponsor, Sen. John Cornyn (R-Tx) has issued this press release about FOIA issues.

More on Federal Housing Finance Agency's Fannie/Freddie FOIA Statement

Here is the Federal Housing Finance Agency's ("FHFA") testimony made to Congress on May 25 in which Acting Director Edward Demarco states that the agency is against House Bill H.R. 463 which would impose the FOIA on Government Sponsored Enterprises ("GSE") Fannie Mae and Freddie Mac. 

A spokesperson at FHFA told me that the position is that of the agency and not of the administration.  He also stated that the opposition is for a number of reasons, some of which are in the testimony.  According to FHFA, the legislation is not clear as to how the FOIA's exemptions would apply to Fannie and Freddie.  Further, FHFA believes that the two companies are solely private companies and placing them under the FOIA would be unprecedented.  FHFA does not believe that the core purpose of the FOIA would be furthered by placing the provisions of the FOIA on Freddie and Fannie.

It appears that FHFA does not place any difference in a private corporation and a GSE, which is the difference in this situation.  The question that needs to be answered is what differences are there (and what differences should there be) from GSE's and totally private corporations in their accountability to the tax paying public?  Would a specific transparency requirement that is similar to the FOIA but written specifically for these GSE's meet the FHFA's concerns?

Fannie, Freddie Regulator -- No to FOIA

Edward Demarco is the acting director of the Federal Housing Finance Agency ("FHFA"). FHFA regulates Fannie Mae and Freddie Mac. Fannie Mae and Freddie Mac are known as Government Sponsored Enterprise ("GSE"). GSE's are private companies except that they are chartered and regulated by Congress; and get a great deal of financial support from taxpayers. Currently, GSE's are not subject to the FOIA.

Fannie Mae and Freddie Mac are are under federal conservatorship because they are billions of dollars in debt. There are a number of bills pending in Congress amending how the federal funding of mortgages should work, many change the structure of Fannie Mae and Freddie Mac. One makes these entities subject to the FOIA.

This week, MarketWatch reports that Demarco testified to Congress and stated that Fannie Mae and Freddie Mac should not be subject to the FOIA.

I don't know anything about Mr. Demarco, but he is 100 percent wrong. GSE's get special benefits from the government -- as such they owe it to those people funding them to be fully transparent. And those people are taxpayers. The way for this transparency is by making them subject to the FOIA. Demarco is right that there may be additional costs -- such as processing FOIA requests and paying lawyers when FOIA requests go to litigation, but that reasoning could be expanded to all of government -- it costs money so we should get rid of FOIA altogether. Mr. Demarco isn't looking at the big picture; he is looking at it inside his box as a professional regulator of two failed entities -- by making GSE's transparent, money will be saved in the long run because money losing schemes will be discovered years before FHFA finds them and does anything about them. Regulators like Demarco don't want reporters and/or regular citizens looking into what their regulated entities are doing and questiong both the entities and the regulators. However, for a democracy to work effectively, there are checks and balances and one of them is that transparency allows all to see how things are working, not just the regulators. Mr. Demarco is merely protecting his turf -- and his comments should be seen in that light.

Congress should immediately act to make Fannie Mae and Freddie Mac subject to the FOIA. Further, they should make other GSE's such as the Public Corporation Accounting Oversight Board ("PCAOB") subject to the FOIA as well. America will be better for it.

Labor Hit With FOIA For IPhone App Details

The Daily Caller reports on a FOIA request sent to the Department of Labor for details on its technological investment of an IPhone app that allows workers to track their hours worked. The problem with the app, according to the report, is that it can short the hours by up to 65 hours per year.

Friday FOIA Update: Bin Laden Photos, ACLU Sues CIA

The ACLU has gotten into the litigation game. Yesterday they filed suit agains the CIA. The twenty working days the CIA has to process the request is also not up. (Last week, Judicial Watch sued the Department of Defense before the twenty days were up). It will be interesting to see how the Court decides this one as they time limits are in the law to give agencies a chance to make decisions and put a record before the court before the cases are actually before a Court. The ACLU complaint can be found here:  Download CIA

Update:  This lawsuit isn't for the Bin Laden files but is for information on the CIA's IG report on the detention, interrogation and treatement of individuals detained after 9/11.  It is related to Bin Laden's death as there is an issue as to what techniques provided the U.S. with information that eventually led to the U.S. finding Bin Laden.  With that being said, it was still filed before the 20 working days were up -- but after a denial of a request for expedited processing.  This should be interesting procedurally.

I am not sure how I came up with the ten percent chance of a release for the Bin Laden death photos that I am quoted as saying in this AtlanticWire. I am pretty sure this is based on the fact that we still don't know which agency is claiming jurisdiction over the photos and what exemptions they will use to protect them. Once these two facts are known, I'll put on my Carnac costume and give a new number.

Josh Gerstein of Politico has this on the AP being denied expedition on its request. Josh poses a great question, if this isn't a breaking news story of general public interest, what is?

AP Appeals Bin Laden Photo Delay

The Associated Press has appealed the Department of Defense's delay in quickly processing the photos of a deceased Osama Bin Laden. Details can be found here.

This step moves the AP's request one step closer to litigation. Last week, Judicial Watch filed a lawsuit because the Navy said it wouldn't respond in the statutory time period.

DHS and the Metadata Requirement

The Department of Homeland Security is appealing a federal court ruling that it has to release metadata information pursuant to a FOIA request with potentially one million documents. The government claims they don't have the equipment necessary to make the releases; the plaintiffs say that the metadata material is needed to understand the material.

The underlying issue is whether state and local law enforcement's participation in a national fingerprint program of immigrants in mandatory. Nextgov.com has an extensive report on the issues involved, both FOIA and otherwise.

Supreme Court: FOIA Release Bars Private False Claims Act Suit

The Supreme Court has ruled by a 5-3 margin that a release of documents pursuant to the FOIA is a release of a report that bars a private citizen from bringing suit under the False Claims Act.  The decision can be found here.

Update:  Here is the AP's on the decision.

Bloomberg Radio Interview -- Saturday May 14th

I'm interviewed on Bloomberg Radio's Law Radio Show on Saturday May 14th.  The Show airs at 7 am, Noon, 5 pm and 10 pm.  It can be found nationally on XM/Sirius Channel 113, Bloomberg.com/radio (hit the live stream button) and for those of you in the NY City area, AM 1130.

Judicial Watch Sues Over Bin Laden Death Photos

Judicial Watch has sued the Department of Defense (DOD) for the death photos of Osama Bin Laden.  The complaint can be found here.

Judicial Watch sued because the DOD said it would not be able to complete its processing of the request within the 20 working day time period allowed by law.  However, as the 20 working days has not yet expired, the government may move to dismiss the complaint as untimely -- even if the letter says they won't comply in time. 

Additionally, this suit is only against the DOD; it isn't even clear that they have possession of the records as the CIA was also involved in the raid and they have reportedly viewed the photos at CIA headquarters.

UPDATE:  Here is the AtlanticWire.com's article on the lawsuit where I am quoted.