The Department of Justice has published its guidance on the fee restrictions imposed on agencies by the FOIA Improvement Act of 2016. Basically, if agencies fail to respond to requesters within the statutory period they have to give up on collecting certain fees, including search fees.
The Reporters Committee for Freedom of the Press has released a survey of journalists on the longstanding FOIA rule that a release to one is a release to all. Most journalists generally support the rule, but many seek a delay in the release to the original requester to the release of the information to the rest of the world.
This debate has become a bit of a heated topic as the federal government moves to online portals for the administration of FOIA requests. These portals generally allow anyone to see what was requested and released in almost real time. Many journalists feel that they lose a competitive edge when the results of their releases are published to the public at the same time they get the information. However, the flip side of this argument is that journalists, as members of the news media, generally do not have to pay fees for the information where a member of the general public would have to pay for this information.
The Department of Justice is supposed to be reviewing this issue and is allegedly having a meeting with "journalists" in September. Of course, with the advent of the internet and changes made to the FOIA law in 2007, it's difficult to even classify who is a "journalist" in the FOIA world.
It's a big confusing issue and will continue to be debated for, at least, the near future.
The Washington Post has this on the DC Circuit's decision that students can qualify for the Educational Institution Fee Status under the FOIA - prior to this decision only professors usually were granted this fee status.
The Department of Justice has issued guidance on when it is appropriate and how still interested letters should be used by requesters. Some agencies have been accused of using still interested letters as a way to close requests rather than processing the material.
Judge Christopher Cooper of the District of Columbia Federal Court has overturned a Department of Homeland Security decision that the Transactional Records Access Clearinghouse (TRAC), which is associated with Syracuse University was a commercial user for FOIA purposes. The decision found that TRAC was both a member of the news media and an education user for FOIA fees. This case shows that there is a dire need for leadership in FOIA - there was no reason it got to litigation in the first place. I'm not sure it was even a close case that plaintiff would not prevail, and even if it was a close case, the fee classification should have gone to the requester as FOIA should be read in the most liberal and broad manner to promote transparency. This is important in fee cases, especially in light of the fact that if DHS had gotten fees they would have gone to the general treasury, not the DHS FOIA program. Instead over a year of court clogging litigation has taken place and the requester is still waiting for the request to be processed.
The FOIA Fees Subcommittee of the FOIA Advisory group met on December 3 and the notes of the meeting have been published here.
FOIA fees are an important issue -- one that balances the need to collect some revenue, provide waivers to certain requesters and make sure that information can still be released. The notes make interesting reading.
Judge James Boasberg of the United States District Court for the District of Columbia has ruled that when Congress said in its 2007 amendments to the FOIA that agencies could not charge fees except for exceptional circumstances when they failed to process the request within the statutory time period they actually meant just that. Judge Boasberg ruled against the Department of the Interior's National Park Service where they tried to charge fees in a case where they ruled against the requester's fee waiver request but did so after the 20 days had expired.
For those of us who have tried to bring this provision of the FOIA to the attention of FOIA Officers and Appeal Offices but have been routinely ignored, this is a very positive result. While no one wants to see FOIA Offices lose funding, their failure to process requests in a timely manner now has results that affect their bottom line.
Update -- the comment below makes a good point (one that I had obviously forgotten) -- fees collected are not related to operating costs of FOIA Operations; and I'm not sure anyone actually takes this into consideration when budgeting for FOIA Operations.
The Treasury Department's bill of over $500,000 to respond to a FOIA request concerning the once-frozen assets of a Libyan company has brough unforeseen consequences to the Department of Treasury, a lawsuit. The Treasury Department will now have to defend its excessive FOIA fee in Court. A similar request to the FBI only resulted in fees of $242, but of course, the FBI has yet to process and release the responsive records.
It could get worse, the Michigan State Police have told a requester that fees on her request for records pertaining to Homeland Security Grants are estimated to be almost $6.8 million dollars. Yes, I said million.
The Reagan and Bush (George H.W. Bush) Presidential Libraries will be releasing approximately 250,000 pages of records today.
A contempt hearing has been set against the Interior Department and its component agency Fish and Wildlife Service in a FOIA lawsuit against it by a group seeking drilling documents in a National Wildlife Refuge. The hearing is scheduled for May 8, 2009.
Judicial Watch claims a bill for fees rather than a grant of a fee waiver is retaliation because it published a report last month critical of House Speaker Nancy Pelosi. While I think Judicial Watch should have received a fee waiver, I believe it is more of a bureacratic screw up than a retaliatory act.
Finally, four names of those in charge of TARP have been released.