The Senate Judiciary Committee plans to take up the FOIA bill pending before it on Thursday, September 18th. The Committee schedule has a number of judicial nominations and other bills pending for action on Thursday as well.
My friend, Amy Bennett from OpentheGovernment.org, has this editorial that has appeared in a number of newspapers around the country on the amendments to the FOIA that is pending before the Senate.
As I've said before, there are only a limited amount of days before Congress recesses for the year, so the Senate really needs to get busy on this issue or the legislation will have to be reintroduced in 2015.
This week we have two very interesting FOIA decisions.
First, is a decision reported by Politico that the sole document found responsive to a request concerning the costs of creating or maintaining Guantanamo Camp is properly classified. Most of the government's briefing was done ex parte and shown only to the judge because event the explanation was, according to the government, classified. It's really hard to know what they were arguing. The most interesting takeaway is that only one single page document was found responsive to the request. I'm not sure that is good accounting, classified or not.
Second, is a decision reported by Fierce Content Management against the EPA that finds text messages to be covered by the FOIA. The decision says that the government must destroy them like any other records, meaning in conjunction with the National Archives and Records Management. The government is about 25 years behind in e-mail document management, so its no surprise that, while the rest of the world is heavily using text messaging, they believe these records are not really records at all. I'm pretty sure the government will have a text message retention policy by 2050 when most of the world is using another as of now undiscovered message technology.
I just wanted to give a big thank you to all of those that attended the 2014 American Society of Access Professionals (ASAP) Workshop last week in Chicago. It was great meeting all of those in attendance and discussing FOIA issues with you.
And remember, ASAP always has FOIA training available in the form of webinars. You can find out more here.
The Freedom of the Press Foundation has a blog entitled This Week in Transparency. It highlight's transparency issues- its not all FOIA, and it comes from the viewpoint of a journalist. I find it to be a very interesting read and it can be found here.
The RTDNA (Radio Television Digital News Association) has came out strongly in favor of passage of the pending FOIA reforms in the Senate. As the article states and I stressed over the summer, there is only a few legislative days left in Congress this session, so if the FOIA bill is going to be passed, the Senate needs to get busy.
In a request that can be construed as either pro transparency or anti transparency, Senator Diane Feinstein (D-CA) has asked the Department of Justice to delay responding to a request made by a FOIA requester for the Senate's report on the CIA's Detention and Interogation policies. Politico reports that Sen. Feinstein sought the delay because her committee is still negotiating with the Department of Justice over the numerous redactions the government made in the document. It appears that the Senate would like less redactions but would like the final document it agrees on the release of outside of the FOIA to be the same document released in the FOIA process.
In a case that demonstrates why the Department of Justice doesn't understand when its knee jerk use of the privacy exemptions are improper, the FBI has been ordered to release certain information pertaining to the FBI's investigation of actor George Hamilton done at the behast of then President Lyndon Baines Johnson. LBJ's daughter was dating the actor at the time (1966) and the FBI insisted it was withholding the material to protect the actor's privacy. The Court's lengthy opinion, however, shows how the public interest in a ill intentioned government investigation outweighs the small amount of privacy Hamilton may have in the records. It's a very interesting opinion - and that says a lot for a FOIA opinion. Another interesting tidbit is that the case was prosecuted by law students at Villanova.
Update: The Philadelphia Inquirer has a story on this matter, which includes a quote from the requester. The only thing I have to add is that it is very unlikely that the President or anyone appointed by the President had anything to do with the decision to withhold Hamilton's name, these decisions are usually made by the FOIA offices involved and prosecuted by the U.S. Attorneys Office involved.
Federal News Radio reports on the CMS denying an Associated Press Reporter's FOIA request for records pertaining to documents about the kinds of security software and computer systems behind the federally funded HealthCare.gov. The agency denied the records using a novel claim that release of the records because doing so could leave the site vulnerable to hackers thus causing an unwarranted risk to consumer's private information.
Less than five years ago, this request would simply have been denied pursuant to FOIA Exemption 2. However, the Supreme Court limited the use of Exemption 2 in Milner v. Navy in 2011 and there has been no attempt to add legislative language that would protect information that would truly cause a harm to internal government operations since. Agencies have had to use extreme measures to protect information they are concerned about and by doing so the argument has shifted away from the real issues. For instance in this case, would the release of the records really create a vulnerability to hackers is the issue. However, the argument made by the government creates a secondary issue that is just as important - if hackers get in, would it allow for the release of personal privacy information otherwise protected pursuant to Exemption 6?
By failing to provide a real legislative fix, both Congress and the Administration has made it much harder for both requesters and FOIA Offices to have workable rules to get or deny information under the FOIA. Agencies are forced to make arguments that come out of law school blue book exam and requesters are then forced to push back on those arguments in much the same way.