The FOIA blog

19 of 20 Agencies Fail FOIA Timeliness Test - My Take

Bloomberg has this article entitled "Obama Cabinet Flunks Disclosure Test With 19 of 20 Ignoring Law."  Basically, the story says since 19 of 20 agencies did not respond to a FOIA request made by Bloomberg for travel records, the government is not following the President's transparency pledge made on his first day in office. 

I'm not sure the headline is fair -- disclosure and timeliness are not exactly the same.  The President did not say that he'd make sure that all agencies would make disclosures within the statutory time allowed by the FOIA (20 working days).  While I would applaud if all agencies could make that time-frame, it is not going to happen by Presidential order alone.  As anyone with any knowledge of high school civics knows, the agency budget is not set by the President -- it is voted on by Congress and then signed by the President.  As my readers know, I believe FOIA offices are vastly underfunded -- and I'm not going to get into the discussion of how that happened or how it can be corrected-- it just is.  So to grade agencies on timeliness and say they fail a disclosure test is just wrong.  The real test should be did they release disclosable material within a reasonable amount of time?  The article goes on to state that a number of agencies did make the release albeit not within the statutory time period. 

Making FOIA requests and waiting for the release of the information is a very frustrating experience.  I know this very well because that is what I do for a living.  However, it is also frustrating for FOIA professionals who in many cases are at the mercy of agency officials to both fund the FOIA office and to give the responsive records to the FOIA professional for processing and release.  I think a better article would be why agencies can't make the release of the request within 20 days or even a reasonable time -- and flag agency officials outside of the FOIA office who hamper this from happening. 

Navy Sued Over 40 Year Old Crash Report

Theo Karantsalis has sued the Navy over its decision to withhold records pertaining to a jet crash report on an incident that happened 40 years ago.  The fact that this case has gotten this far is testament to the fact that the discretionary release policy espoused by the Department of Justice is largely ignored among many agencies -- the documents at issue are being withheld pursuant to Exemption 5 -- if there was ever a case where discretionary disclosure, at least for part of the records, is appropriate, it's here.

  The complaint can be found here:  Download Navy_complaint

WH Visitor Log Update

During the George W. Bush administration, the government argued that White House visitor logs were not subject to the FOIA and refused to disclose them.  A lawsuit over the issue was filed -- and was still moving through the system when Barack Obama took office.  Obama settled the lawsuit with the White House agreeing to make the Visitor Log's public after a certain period of time, but the White House did not concede that the logs were releaseable under the FOIA.

Judicial Watch, not a party to the settlement, then filed its own lawsuit for visitor logs (the logs are maintained by the Secret Service).  A district court found that they are subject to the FOIA and the administration appealed.  The appeal is now pending and last week was argued before the United States Court of Appeals for the District of Columbia Circuit.  Law.com has a summary of the argument, and a roster of who's on what side of the issue.  An opinion is likely in a few months.

Second Circuit Issues Major Exemption 5 Opinion

The United States Court of Appeals for the Second Circuit has issued a major opinion on Exemption 5.  The case was brought by the Brennan Center for Justice against the Department of Justice ("DOJ"), the Department of Health and Human Services ("HHS") and the U.S. Agency for International Development ("AID").  The request sought three opinions of the DOJ's Office of Legal Counsel given to the Department of Health and Human Services and the U.S. Agency for International Development.  The district court found that the 3 documents were not covered by Exemption 5 and ordered release; the government appealed.

After a lengthy discussion of how an otherwise Exemption 5 protected document can lose that protection, the Court of Appeals found that one of the documents had indeed been incorporated by public comments of HHS.  That document was found to not be protected by the Exemption 5 protection and the district court's release order was affirmed.  The Court of Appeals found that the other two documents were not specifically incorporated or adopted by HHS and were found to be exempt from FOIA release.

The opinion can be found here- Download Brennan Center FOIA Opinion

D.C. Circuit Hears CIA Drone Appeal

The Court of Appeals for the District of Columbia heard the ACLU's appeal on the dismissal of its lawsuit against the CIA on the use of drones to perform target killings.  The CIA has refused to confirm or deny that records on the issue exist and a district court ruled in the CIA's favor.

The Blog of the Legal Times has a full write up of the oral argument.  A decision will likely come down in a few month.

Update:  Here's the Washington Post piece on the oral argument.

Public Citizen Asks FDA to Drop "Minor Deletions" Policy

Public Citizen has petitioned the FDA to drop it's "minor deletions" policy in which the HHS component makes small redactions in releases but claims that they do not trigger administrative appeal guidelines.  Public Citizen's release on the petition follows:

The FDA has a written policy stipulating that “minor deletions” from documents are not formal denials of information requests and, therefore, do not trigger a requester’s immediate right to appeal. The agency instead requires requesters to make a second request for “reconsideration” of any deletions before being allowed to appeal. If a requester does not do so, the FDA administratively
closes the FOIA request without ever making a final determination. The agency does not define “minor deletions,” but in practice it relies on the policy to delete substantial portions — sometimes full pages — of documents.

Public Citizen’s petition urges the FDA to immediately revoke the “minor deletions” policy.

“The FDA’s policy is a blatant violation of FOIA,” said Julie A. Murray, attorney for Public Citizen and a signatory of the petition. “FOIA establishes that withholding any information responsive to a FOIA request constitutes a partial denial, entitling requesters to an administrative appeal. Forcing requesters to make two attempts just to get a proper response to a FOIA request is at odds with the streamlined FOIA process required by Congress.”

The FDA’s failure to correctly classify releases with “minor deletions” as partial denials also calls into question the accuracy of data that the FDA provides to the public in its FOIA compliance reports, the petition said. As detailed in the petition, in 2011, FDA classified 97 percent of its dispositions as full releases, as opposed to releases in part or full denials. If the FDA includes responses with “minor deletions” among those full FOIA releases — as its deletions policy suggests it does — then the FDA’s record of responding to FOIA requests through full disclosure is artificially, and perhaps
grossly, inflated.

The FDA has long known that the deletions policy is legally questionable. More than two decades ago, the Government Accountability Office (then the General Accounting Office) advised the agency to rescind its deletion policy, saying that it “creates a procedure for requesters that is not
authorized by FOIA.”

Although the agency contends that the policy helps speed the processing of FOIA requests, there is seemingly no reason why it would take any longer for the agency to formally deny a request in part and give requesters the immediate ability to appeal, as other agencies already do.

“The agency’s current policy is contrary to law, unnecessary to serve FOIA requesters, and ultimately does a disservice to FOIA’s commitment to transparency,” Murray said. “It is past time for the FDA to revoke it.”

The FDA's petition can be found here.

DOJ Issues Exclusion Guidance

The Office of Information Policy/Department of Justice has issued guidance on the use of exclusions in FOIA requests.  The guidance can be found here.

I'd like to hear from readers on what they think of the guidance.  I'm also interested to know what happens when an agency follows the guidance but disagrees with OIP over the use of an exclusion-who makes the final decision on the matter?

2012 Secrecy Report

Openthegovernment.org has released its 2012 Secrecy Report.  It's a fairly substantial document discussing government classification, FOIA processing and other matters related to government transparency.  The report can be found here.

EPA Sued Over Failure to Produce Private Emails

The Washington Examiner reports that the EPA has been sued on a FOIA request for what the lawsuit claims is the EPA's failure to produce emails sent to or by EPA officials on non-EPA emails. As of the date of the lawsuit, the EPA hasn't responded to the litigation, so its not clear if the non-agency emails exist.

FOIA Backlogs Up Despite More Spending on FOIA

According to Federal News Radio, the DOJ summary of FY 2011 Annual FOIA Reports reveals that the number of requests are up and backlogs are up despite DOJ claiming there is more spending on FOIA. 

I'm really not sure what to make of these numbers.  I'd like to know if the spending increases have anything to do with agencies hiring contractors to do FOIA processing, technology upgrades or other factors that weren't around ten years ago.  Additionally, I think we need to see another years worth of numbers before we decide if something is a blip or a trend.