With today's revelation that the current White House staff is using non government RNC emails, its good to remember that due to a 2009 appeals court decision the White House is not subject to the FOIA but the records are subject to the Presidential Records Act (which means that 5 years after this President leaves office some of them will be made public). Thus USA Today article has the details.
The Washington Post reports that the current resident of the White House has issued a "media blackout" at the EPA and other departments. This order requires media inquiries to be forwarded to the Office of Administration and Management. It is unclear if this means the EPA should stop making FOIA releases to media and others but if it does it puts those employees in the FOIA offices in a difficult place. This is because the FOIA is a law that must be followed, despite any orders from the President.
If EPA and other agencies are required to put FOIA releases to the Office of Administration and Management or any other political faction, it would be an invasive and unwarranted politicizing of the FOIA.
The current president has taken his first action against the FOIA - he implemented a hiring freeze on federal employees.
How is this an act against the FOIA? By not allowing already depleted FOIA offices to hire and replace exiting employees or hire to allowed FTE levels, this action insures that FOIA backlogs will only get larger - which is clearly an anti-transparency action.
The Department of Justice has issued guidance on defining a record under FOIA - the guidance comes as a result of a D.C. Court of Appeals case in 2016 which did not approve of the agency in question's practice in handling a FOIA request. Law360 has this analysis of the OIP guidance.
Fox News reports that Puerto Rico, a United States territory, will draft a FOIA that is more in line with that of the federal government and the other U.S. States. Puerto Rico has a very weak law currently that makes it difficult to get records on various government activities.
I've been looking into the FOIA crystal ball and have a few predictions about FOIA in 2017. Some may be obvious, some not so much.
1.) The new administration will not have a very strong grasp of transparency issues. They may have, in theory, pro-transparency positions. But many of those named as Secretaries of various agencies or in positions in the White House have no federal or state government experience and won't actually realize how FOIA, the Privacy Act, FACA etc... actually work. This will probably be apparent sometime later in the year when FOIA requests for these individuals records are searched for and processed.
2.) Agency FOIA operations will have tougher times during the year as agency budgets will not be increased and a potential hiring freeze will only help to increase backlogs.
3.) There will many high profile lawsuits filed by old and new media this year - many will be filed because the requests are unfilled in the statutory period.
4.) Lawsuits from non-media will also increase. Increased backlogs, poor FOIA training and other issues in agencies will likely increase the frustration with requesters and get them to pull the trigger on lawsuits. The fact that the FOIA Ombudsman (OGIS) can't force agencies to act properly doesn't help this situation.
5.) The FOIA will not be repealed!
Have a happy and healthy new year and don't forget to check the FOIA blog for additional FOIA news in 2017.