The Office of Government Information Services (OGIS) which is the Office tasked with FOIA Ombudsman activities among other things is hiring. They have two job positions open and they hire from both within and outside of the government. The job postings can be found here and here.
The Center for Public Integrity has sued HHS over a FOIA request on Medicare Advantage Documents according to the Daily Caller. The article quotes CPI journalists who brought the request as saying the lawsuit was brought because the government ignored the request.
This leads me to my question of the day, are FOIA backlogs the same as a lack of transparency? And can the administration be solely blamed for them when they are dependent on a stream of funding for FOIA Operations- funding that comes from Congress? I think there is plenty of blame to go around between the administration, agencies and Congress in the discussion of these issues.
Each agency that is covered by the FOIA must have regulations concerning their FOIA program. These regulations must incorporate the latest statutory amendments and case law. However, many agencies have failed to make the necessary changes in recent years and are operating their FOIA programs under regulations that do not reflect the current state of the law. A coalition of public interest groups has developed a website that has a model set of FOIA regulations that will allow agencies to easily update their regulations. The website can be found here and provides a great deal of valuable information.
Here's some FOIA news on the Thursday before Memorial Day.
The Department of Education has been sued by a consumer group over the agency's refusal to hand over details of its private debt collection program according to insidearm.com. For those interested, the FOIA decision against FMS discussed in the article can be found here.
And the Department of Justice has lost its fight to use a glomar on a confidential source where the fact that the source was used was acknowledged in the underlying criminal case. The government will now have to justify its use of Exemption 7(C) to protect the actual records of the source.
The AP is reporting that the government will release the Department of Justice memo justifying drone strikes. A court order recently found that the memo is not completely withholdable under the FOIA and its author, David Barron is currently awaiting a vote to be a federal judge.
From my years of watching FOIA policy decisions, I believe that It is likely that Barron's status, not the legal issues involved in the withholding decision, heavily influenced the government's decision to not appeal the decision on the memo.
A 2-1 decision by the U.S. Court of Appeals for the District of Columbia has found that the final section of the CIA's report on the Bay of Pigs is a draft document and is therefore withholdable pursuant to FOIA Exemption 5 pursuant to the deliberative process privilge. Basically the decision boils down to the fact that the Court accepted the report to be a draft document and therefore, under any circumstances under the current FOIA law, an agency may protect the draft under Exemption 5.
The decision shows why Congress should write two things into the FOIA. First, Congress should put into the FOIA a requirement for an agency to make a foreseeable harm showing in litigation. Secondly, Congress should create a time standard for withholding material under Exemption 5. These documents are approximately 40 years old, and it is not clear what public policy position would be advanced by allowing Exemption 5 material to be protected for such a long period of time.
A couple of new FOIA lawsuits have been filed. The American Small Business League has filed suit against the Pentagon for contracting data concerning Sikorsky according to MENAFN.Com. Judicial Watch has, according to Newsmax, filed suit against the Navy about FOIA procedures after last years Navy shooting.
The American Society of Access Professionals [ed. note- I am the current President] has released another Webinar- for more see the ASAP website.
The Legal Times reports on the split decision by the United States Court of Appeals for the District of Columbia permitting the government to protect information on criminal cases involving warrantless cellphone tracking if the defendant was acquitted or had their case dismissed. The article includes a direct link to the 2-1 decision which may likely be the subject of further litigation.
Fierce Government reports that NARA is creating a FOIA advisory committee. Advisory committees can be very helpful in getting outside voices to move government issues. In this case, outside voices may be the last best hope to put some energy into the FOIA as the career bureacrats in government have done their best to quash President Obama and AG Holder's views on open government which were set forth in the early days of the administration.
The Legal Times reports on a decision by United States District Court Judge Reggie Walton's finding that documents pertaining to the hiring of consultants by the Office of the Comptroller of the Currency were protected pursuant to FOIA Exemption 8.
Exemption 8 is one of the least used exemptions, however following the Great Recession and the spotlight on lending practices, the exemption has started to get a bit more attention. As this was a case of first impression, it will be interesting to see if it is appealed.