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.
DCist has this follow up story on the year long quest of a DC ANC commissioner to get information about crime prosecutions in the city. The DOJ insisted that it didn't have the information, but released similar information to Congress. After it finally handled over the information, the DOJ and the requester settled the litigation brought by the requester.
DOJ still insists that it wasn't a FOIA request that brought about the release because they claimed to not have the information in the specific way the requester sought it - the requester sought it by Ward, the DOJ had it by Police District and the two are not the same.
This case illustrates a fundamental problem in FOIA and agency unwillingness to deviate from black and white rules - even though some courts have already done so - If the records are not exactly how the agency has them maintained they will argue they have no responsive records rather than offer what they have or make changes to lists to produce them how they are requested. Because DOJ will defend these types of bureaucratic stubbornness rather than make agencies reach compromises in the spirit of openness, requesters will continue to have difficulty in getting information compiled in databases for the foreseeable future.
The Hill has this list of the top 10 lobbying victories of 2016. FOIA Reform bill is among the top 10. The article lists the organization that are winners with the bill's passage but declines to name the one organization that spearheaded the bill which is OpentheGovernment.org. OTG worked very hard on the bill for a number of years and should get recognition for this effort.
FYI - since its passing over 50 years ago, the FOIA is amended about every 10 years. The crystal ball says the next FOIA reform will again start to perk up in about 2020-22, and pass in 2024-26.
The Department of Justice has a draft proposal on the "release to one, release to all" rule - This rule is a longwithstanding FOIA idea that if a release is made under the act, then the release is public material and can be released to all requesters. This used to be a release was made by mail to a requester and then other requesters, perusing FOIA logs or articles written by the original requesters, would seek the material. However, with the technological changes brought about by the internet, the time that the second requester can get this material is now mere seconds - and some journalists have complained about the policy. Thus, DOJ is proposing a new policy and seeking comments on it. For more on this issue, see the Justice link here.
The FOIA Project reports that there were more FOIA lawsuits filed during the Obama Administration than during the previous Bush Administration. Las Vegas has not yet posted the odds on the over/under during the upcoming Trump Administration.
The 21st Century Cures Act, which has passed Congress has a FOIA Exemption 3 statute in it - The applicable portion of the act reads as:
21st Century Cures Act just cleared by the Congress and soon to become law.
SEC. 2013. PROTECTION OF IDENTIFIABLE AND SENSITIVE INFORMATION.
Section 301 of the Public Health Service Act (42 U.S.C. 241) is amended by adding at the end the following: (f)(1) The Secretary may exempt from disclosure under section 552(b)(3) of title 5, United States Code, biomedical information that is about an individual and that is gathered or used during the course of biomedical research if— (A) an individual is identified; or (B) there is at least a very small risk, as determined by current scientific practices or statistical methods, that some combination of the information, the request, and other available data sources could be used to deduce the identity of an individual. (2)(A) Each determination of the Secretary under paragraph (1) to exempt information from disclosure shall be made in writing and accompanied by a statement of the basis for the determination. (B) Each such determination and statement of basis shall be available to the public, upon request, through the Office of the Chief FOIA Officer of the Department of Health and Human Services.
And finally, the Institute for Justice has filed a FOIA lawsuit against the IRS and Customs and Border Protection. The lawsuit concerns civil forfeiture issues and the complaint and more details can be found here.