The Department of Justice has announced a pilot program at seven agencies that will make proactive disclosures online of FOIA releases. The idea is that a release to one is a release to all and rather than wait for others to make requests for the information, the material will be placed online.
Current law states that frequently requested material should be proactively disclosed - the new pilot program merely takes the guessing out of what will be frequently requested and just puts everything online.
There has been some pushback from journalists who impute a right in FOIA to get information on requests they make first rather than the material going up online for everyone. That argument has been made for many years but there is no legal right in the requester getting the material prior to a delay for others getting material.
The Department of Homeland Security launched a FOIA app that can allow a user to make a FOIA request on an iphone. The Department of Justice has the launch announcement.
The Huffington Post reviewed the app and didn't give it good marks. According to the review, its tough to make the request on the app, there isn't immediate confirmation (note - I use many websites to make requests and the best immediate send a confirmation email), and on android phones, the users location is tracked.
My view is that I'm happy that DHS is trying to embrace technology. However, there is no outcry for easier ways to make requests - the outcry is for requests to go through the system faster and more efficiently. My hope is that DHS now uses technology to battle its backlog and allow those requesters making requests either the old fashioned way (via letter or email) and by app, to get the material in a timely manner.
Madison.com has this on the Wisconsin's legislature's attempt to drastically cut back on openness in the state. The legislature had introduced amendments to its omnibus budget that would have drastically cut back on transparency in the state government. After a huge outcry from all parts of the political spectrum, the amendments have been taken out of the bill.
Ironically, it isn't clear who (members of the legislature or the governor or a mix) is the guiding force behind the bill. If the bill had passed, it would have likely been an issue in the upcoming Presidential Election now that Wisconsin's governor is set to join the list of candidates.
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.
Tax Analysts has sued the IRS over an unfilled FOIA request seeking information on who at the agency got bonuses. Forbes has this on the lawsuit.
I think the larger point is that the IRS is just overwhelmed. A number of employees have been detailed to seek the Lois Lerner emails, their budget has been shrunk, and they just can't get ahead of the curve. This is where those in leadership positions from the federal government FOIA community should come in and proactively assist the agency rather than just standing by and thinking "glad its not us." Remember, it takes a village to process a FOIA request!
Many readers will remember that earlier this month, Sen. Majority Leader Mitch McConnell (R-KY) attempted to push through a new FOIA exemption without any debate on the floor of the Senate. However, as the Sunlight Foundation reports, this attempt was blocked and the National Defense Authorization Act no longer has a new FOIA exemption attached to it.
It is not clear if McConnell will continue to fight transparency when the Senate considers legislation in the upcoming weeks.
I've returned from Denver where I participated in the American Society for Access Professional's FOIA Workshop. The Students were fantastic - I'm always excited to talk to FOIA professionals who want to do their jobs better. They are more opportunities for ASAP training coming up soon - see ASAP's website for more.
The following happened last week in the FOIA world:
Homeland Security was found to be in "egregious violation" of the FOIA in a lawsuit against it - the Seattle Times has more.
A rare FOIA trial is being held and the FBI had to testify. As the Reporters Committee for Freedom of the Press writes, current FBI FOIA managers have made it very difficult for the average requester to know exactly what to ask for and where to ask for it.
Finally, Politico reports that Exemption 5 applies to advise given to the White House on Drone policy.
Mitch McConnell's war on transparency lost a battle Thursday as his plan to add the Cybersecurity bill into the National Defense Authorization Act (NDAA) failed according to Politico. The McConnell plan would put the Cybersecurity bill into the NDAA but not allow any debate or amendments on the actual bill, which includes a broad 10th Exemption for the FOIA.