The ongoing saga of the State Department's reassignment of former top employees to perform what they claim are mundane FOIA duties continues. The Hill has this on top Congressional Democrats seeking answers from the State Department on the moves.
Here are my points on the story:
Doing FOIA work should never be considered a "punishment." The FOIA is the way we find out what are government is up to.
The State Department has for years during multiple administrations neglected FOIA. They continue to do so.
The most effective way to process FOIA requests is to hire experienced FOIA professionals and let them make all of the processing decisions.
The State Department's individual program offices have failed to assist the department's statutory duties under FOIA for many years (i.e. agencies have 20 business days to process a requests, the FOIA office often has to wait months for the program offices to search for and give them the needed documents.)
My takeaway- emphasis on FOIA is good, but those who have no FOIA experience are not the way to get there - hiring employees who have FOIA experience is the way to get there.
Politico reports that the State Department has extended its "FOIA surge" by 90 additional days. State has had an enormous FOIA backlog for years - and Secretary Tillerson is trying to address it.
According to the article, higher level State employees are upset that they have to do mundane tasks associated with completing FOIA requests. However, I believe that the structure of the State Department has allowed non-FOIA employees of the agency to create the backlog in the first place. The State Department FOIA Office processes information responsive to FOIA requests, but the offices of State that create and maintain the records do the search for the requested records. These offices have no reason to act expeditiously in doing these searches and getting the information to the FOIA Office for processing. Thus, the wait for the responsive documents - in my opinion - have helped to create the backlog which the Department is now struggling to reduce.
Fulfilling FOIA requests is not punishment, its a statutory duty of the government. It allows the public to know what the government is doing in their (the publics) name. It is one of the highest civic duties a government worker can do.
Fedscoop reports on the delays at HUD and how its capability to search for electronic records is too slow - a finding made by the agency's inspector general. According to the story, electronic records searches go through a process in which the requester office asks the general counsels office for permission and then the third party vendor conducts the search. Since the contract with the third party was made, the number of requests (not just those for FOIA requests) have increased. Further, their are technical struggles as well in finding the information. As such the agency struggles to keep up and FOIA requests are delayed. The contract is up soon and according to the article, the agency hopes to come up with better ways to conduct electronic searches.
This is a records management issue. Prior to electronic records, records management was basically keeping track of paper files and knowing when to dispose of them or send them to NARA. In the digital age, records management has become a much more important area of administration in agencies and FOIA is increasingly impacted by a lack of strong records management protocols. Of course, if an agency can't find electronically stored records, the actual business of the agency is impacted, not just the FOIA. That is why these issues should be at the top of all agency heads to-do list.
TRAC's FOIA Project has this on the incredible increase of FOIA lawsuits in fiscal year 2017 - which covers approximately 2/3 of the current administration's first year. During 2017, FOIA lawsuits numbered 651 up from 515 from FY 2016. Agencies such as Justice, Interior and EPA had large increases in the number of lawsuits filed against them.
While I don't expect the rate of the number of lawsuits to increase in FY 2018, I believe they will trend near the 2017 level for two reasons - 1.) political issues arising out of various agencies and the lack of transparency on those issues and 2.) increased delays in responding to FOIA requests because of the administration's failure to fund and operate FOIA Operations adequately.
The New York Law Journal reports on the Brennan Center's lawsuit against the State Department for documents on the first two travel bans ordered by the current administration last January and March. The State Department had agreed to expedite the processing of the request but hadn't released any documents in the six months before the suit was filed -- according to the article State blames the delay on other agencies who are holding up the release. The Court, in this case in the Southern District of New York, disagreed with the government and said it didn't care where the delay was caused, expedition is expedition and this was no reason for the agency to evade responsibility.
U.S. News and World Report has this on the State Department's temporary assignment of Lawrence Bartlett from his position as head of Refugee Admissions to temporary senior advisor in the FOIA Office.
Aside from the movement of Mr. Bartlett from his position on which he has expertise, this is another strike at FOIA and FOIA Operations. By treating FOIA work as a punishment, the administration signals its distaste for transparency and the work needed to make it happen. If there was a Congress that actually practiced its oversight, it would have a hearing on this move - if the State Department needed a high level advisor for its FOIA Operations, why didn't it find someone with FOIA experience and/or expertise?
The Oregonian has this on the announcement that Ginger McCall will be the state's first Public Records Advocate. I have had the honor of serving on the ASAP Board with Ginger and she will do a great job in this position. Ginger is currently with the Department of Labor and before that had experience on the requester side with a few non profit agencies. Congratulations Ginger!
Citizens for Responsibility and Ethics in Washington ("CREW") has sued the Department of Justice over its refusal to rule on a request to expedite processing of CREW's FOIA request for information as to why DOJ took the extraordinary steps of releasing text messages of two FBI Special Agents. Jurist has this write up on the lawsuit.
By failing to respond to the request for expedition, DOJ opened the door to a lawsuit. As I've written previously I don't fully understand how the release of the texts between these two agents (that were likely in a Privacy Act System of Records due to the agents being investigated internally at the DOJ) does not rise to a violation of the Privacy Act at the DOJ.