Sunshine Week has now passed. Once a year, a number of organizations, individuals and government entities celebrate openness and discuss problems in the transparency world. Last week, like previous Sunshine Weeks, had major newspapers such as the Washington Post covering the events -- and the Senate Judiciary Committee holding a hearing on Open Government. This years Sunshine Week even included the release of a bipartisan draft FOIA amendment bill by the House of Representatives.
However, now that Sunshine Week is over, many of these voices will, like a groundhog on February 2, go back into its hole to wait until next year. Big media companies have slowed down their use of FOIA as demonstrated by this report from the FOIA Project. While there is no definite reason why this is, I believe that the reporters and researchers who make the requests and the legal staffs that will prosecute the legal parts of the requests are not always on the same page. Until the media companies figure out their own administrative issues with pursuing FOIA requests, this downward trend will continue. Congress talks a good talk about openness, but the elephant in the room right now is the sequester -- and it doesn't seem to be going anywhere. During a time when FOIA operations in agencies need to get additional funds to upgrade technology and hire and train competent staff, the sequester only pinches these needs further. So as much as a Congress member may claim to be in favor of openness and transparency, these claims without the funds to achieve that goal are nothing but empty words. Finally, the Executive Branch and the administration continue to claim great breakthroughs in openness, such as this recent DOJ testimony. However, as the House Committee on Government Oversight pointed out with its recent letter to the Department of Justice, there are many areas that could be improved.
So the clouds have returned to the blue sky of transparency. Hopefully, those voices that were heard last week will stay out of their hibernation a bit longer this year and work on the important issues that have been brought up and discussed during Sunshine Week.
A three judge panel of the United States Court of Appeals for the District of Columbia has reversed and remanded a lower court find that the CIA could issue a glomar response ("neither confirm nor deny that records exist") pertaining to a FOIA request for records about drone strikes.
The Blog of the Legal Times has this analysis of the case with a link to the Court's opinion.
Open the Government.org is hosting a full day seminar tommorow concering open government issues including FOIA -- more information can be found here. Even if you can't be there, they will be live webcasting the event.
Representative Darrell issa (R-CA) and Elijah Cummings (D-MO), the Chair and Ranking Minority Member of the House Committee on Oversight and Government Reform have introduced a bill amending the FOIA. The Examiner has details on the bill, including a link to a draft of the legislation.
The major takeaway of the amendments is the additonal responsibilities given to the Office of Government Information Services("OGIS") which is located in the National Archives and Records Administration. OGIS was set up in the 2007 FOIA Amendments and was largely to be a FOIA Ombudsman mediating disputes between agencies and requesters. The draft bill has it, among other things, answering to Congress on FOIA issues, being a assistant co-chair with DOJ's Office of Information and Privacy on a FOIA Officers Council. Other items in the bill are a codified period of time for requesters to file administrative appeals (90 days) and an adoption of the foreseeable harm standard in processing requests.
It will be very interesting to see if this moves in the House and if the Senate introduces a similar bill. Other things to watch for are whether there will be a move by the administration to fix the hole left by the Supreme Court decision narrowing Exemption 2 or if the requester community will add items from its own wishlist (such as a time limit on the use of certain Exemption 5 privileges).
The first portion of the 2013 DOJ FOIA Guide has been released. It's only a small part of the entire Guide but its a start. The Guide will only be available online according to the Department of Justice.
It's Sunshine Week, or as many see it, the week that the newspaper industry talks about FOIA and then forgets about it for 51 weeks.
Sunshine Week is also the week that the government runs out its most FOIA friendly policies. Last year, OPM introduced the FOIA job series for government workers. I'm not sure what it will be this year, but I have a couple of ideas.
First - I think the FDA will announce that its doing away with its minor redaction policy. If you've read this blog, you'll recall that Public Citizen put forth a petition for this policy to be abolished nearly six months ago and the FDA has another week to make a decision. The Washington Post has this on the policy. I predict that the FDA will make it decision during Sunshine Week and that the decision will be that the policy will be abolished.
Second - I believe the Department of Justice will introduce its latest update of the FOIA Guide. While I have no inside information on this, its been a long time since the Guide has been updated and I do know that work was being done on the update for at least the last six months. So if there ever was a time to spotlight the updated Guide it is this week. In fact, the DOJ is having a ceremony today for Sunshine Week. If the new Guide isn't introduced, it will be a lost opportunity.
Update: The Guide is out -- find it here. And honestly, I had no idea that it would be out today.
Foreign Entanglements Robert Farley interviews the National Security Archives Nate Jones about FOIA and the problems with getting older documents declassified and released to the public. It's an interesting interview for all people interested in FOIA and can be found here.
The FBI has released its files on the late Whitney Houston according to USA Today.
The file concerns extortion attempts against the singer. The FBI files of many famous people of the last 30 years usually concern the same issues as extortion is a federal offense, especially when it crosses state lines.
The Washington Post has this story which concerns a journalist who had his phones wiretapped by the government during the sixties. The CIA had released snippets of records on this activity in 2007 when it made a number of previously classified records available. However, when the journalist's son tried to get agency records on his father, the agency claimed most of the records were still not releaseable and have denied release of them through the administrative process. Other agencies, however, like the FBI have been more forthcoming and have released details of government surveillance on his father.