It was a busy year for FOIA in 2011 at all levels -- the administrative, legislative and judicial. Here are my top five FOIA stories for 2011 -- I'm sure many of you won't agree with these stories placement and will also feel like I left some out of the list. Feel free to comment on your top stories below.
5. Congress looks into "politicization" of FOIA requests.
The House Committee headed by Darrell Issa (R-CA) held a number of hearings that looked into the "politicization" of FOIA requests. The issue came to a head when it became known that the Department of Homeland Security was routing certain FOIA requests to top political appointments; thereby slowing down the processing of FOIA requests and giving some with no FOIA experience or training a chance to make decisions on the outcomes of those requests. The Committee also issued large scale subpoenas to many agencies for information on FOIA requests made to those agencies for the past five (5) years -- a development that caused many agencies to stop processing FOIA requests in the Spring of 2011 so that they could divert their personnel to comply with the broad Congressional request.
4. Mug Shot case creates split in Circuits.
The Eleventh Circuit decided that the U.S. Marshal's Service was not required to release mug shots -- this report from the Reporters Committee for the Freedom of the Press summarizes the decision. Years ago, the Sixth Circuit Court of Appeals had reached the opposite conclusion, thereby creating a split in the circuits. Theodore Karantsalis, the requester in the Eleventh Circuit decision filed a cert. petition in the Supreme Court asking the high court to resolve the dispute. The government has recently responded to the request and asking that the Supreme Court should not grant the petition.
3. Administration begins process to create a FOIA job classification.
There are thousands of federal workers who perform jobs relating to the FOIA. However, none of these jobs are in one single job classification category; meaning those who make a career in FOIA often do not have a job ladder to work up and each agency will categorize FOIA workers in different ways. This year, OPM announced that it would begin the process of creating a FOIA job classification. The process of creating the job classification is ongoing at we enter 2012.
2. Supreme Court rules that Corporations have no privacy rights.
On March 1, 2011, the Supreme Court ruledthat corporations have no privacy rights pursuant to FOIA Exemption 7(C). AT&T had attempted to state that it held rights a corporation in a FOIA request brought before the FCC -- the FCC had disagreed and AT&T fought the issue all the way to the Supreme Court.
1. Supreme Court rules on Exemption 2.
The biggest FOIA story of the year, in my opinion, was the Supreme Court's March 7, 2011 ruling that FOIA Exemption 2 only protected material that related to employee relations and human resources. This ruling wiped out years of lower court opinions that had created a low-2 and high-2 differential for records under the Exemption and added great uncertainty to records previously withheld pursuant to only the high-2 portion of the FOIA Exemption. Agencies have struggled to deal with the ruling. Many believed that a legislative fix would be introduced, but thus far there has not been any introduced.