President Obama stated in his first days in office that he wanted his administration to be the most transparent in history. His mistake wasn't in making that statement, his mistake was not having any follow through in that statement. The administration has failed to change the bureaucratic mind set at those agencies setting FOIA policy - the same people are in charge today were in the same positions in 2009 - so this administration is virtually the same as the last when it comes to everyday transparency matters, which is basically FOIA operations.
The FOIA Project recently tested agency responsiveness and found many FOIA operations failing to respond in a timely manner to a basic FOIA request. The LA Times has more on the FOIA Project's findings. If the administration wants to improve transparency, basic responsiveness at agencies charged with FOIA policy would be a great place to start.
Politico reports on Cybersecurity legislation working its way through Congress which creates a brand new FOIA exemption rather than working with the current FOIA structure. Some in Congress have already flagged this as an issue and outside parties have also weighed in.
If Congress wants to make information submitted to the government as part of the cybersecurity issue, there are ways to do it with the current FOIA structure rather than creating an entirely new FOIA Exemption. Further, this exemption would be the first created outside of an amendment to the FOIA statute itself and wouldn't pass through the congressional committees that have jurisdiction over the FOIA.
This summer there is no excuse to not get FOIA training as the American Society of Access Professionals has announced that registration is open for three training opportunities. ASAP will hold training workshops in Denver (June 17-18) and Chicago (September 9-11) and its National Training Conference in Washington on July 27-29.
I'll be at all three and hope to meet or reconnect with you. More information can be found here at ASAP's website.
This interesting blog post from two attorneys at Orrick discusses a recent decision from the First Circuit that gave a non-profit (in this case Planned Parenthood) Exemption 4 protection for material it had submitted to the government.
I think the take away is that not only for profit companies have trade secrets or confidential commercial information. This type of material may be submitted to the government by a number of types of entities including non-profits, solo businesses, trade associations, Native American tribes, and more. Tax status is very important to the IRS but not so much in the Exemption 4 analysis
A lawsuit was filed against the Department of Justice on records of an investigation of the shooting of a woman who failed to heed warnings from law enforcement reports the Washington Post, who also has a request for the records.
The records appear to have been created by the United States Attorney's Office - their FOIA responses are handled by the Executive Office for United States Attorneys (EOUSA). Even though this office has had FOIA problems for years, to my knowledge, Congress has never had any hearings into the structure of the office and its FOIA administration. I believe that, in its oversight role, Congress should really delve into this office and also should have the GAO conduct an investigation of its FOIA program. This may help ease lawsuits in the future.
The Department of Justice has published new FOIA regulations nearly seven years after the latest amendments to the FOIA and four years since the proposed regulations were first published. The regulations appear to have taken into consideration many of the comments made to the proposed regulations. Now DOJ needs to work to see that all agencies update their regulations prior to any new FOIA amendments, now proceeding in Congress, become law.
TechDirt reports on a decision by Judge James Boasberg of the U.S. District Court for the District of Columbia on a FOIA request for documents pertaining to the CIA's review ordered by former agency head Leon Panetta of its detention and interrogation program began after 9/11. The court has found that the review is protected by the deliberative process privilege of Exemption 5.
The American Society of Access Professionals has announced the first FOIA training west of the Mississippi since 2011 - ASAP is holding a FOIA workshop in Denver Colorado on June 17 and 18. Register early for the best prices! More information can be found here.
The Hill has this article on concerns being raised by the financial community on the proposed FOIA amendments snaking its way through both sides of Congress.
If I was in Congress, I'd hold a hearing and make those that are thought to have concerns testify on the record so the concerns are known and then considered. [Note: This is not to imply that I share the concerns currently being raised, I just believe the best way to move forward is to have DOJ and others in and out of government testify under oath, as to their beliefs about the FOIA proposals.]