The House of Representatives Committee on Oversight and Government Reform begins today, June 2, 2015. A link to day one is here.
Hopefully this will not just become an opportunity to bash the current administration for the latest negative FOIA headlines. Problems in FOIA Administration go back years, probably from the time the law was enacted. As I have pointed out for years, FOIA is not directly funded by Congress, so agencies must allocate resources out of their general funding. As that amount has not generally risen over the years, there is less and less money for FOIA administration. I'd like to see Congress discuss amongst themselves how to fund FOIA programs. I believe a specific and direct increase in FOIA funding, including FOIA training as well as corollary topics like records management (i.e. email retention) would cause many FOIA operation problems to become less acute. Just my two cents.
A couple of items before the Capital clears out for Memorial Day:
The House Committee on Government Oversight has reported out this legislation specifically aimed at the Department of Homeland Security's FOIA Operations.
The Wall Street Journal has an article claiming that an aide to Hillary Clinton was improperly involved in the FOIA Process. The article, linked to this analysis of the piece by Media Matters is behind a pay wall, so I don't have full access to it. I can advise you I spoke to WSJ about the FOIA process - I do not know if I am quoted in the article. My feeling is that during the election season, many articles will appear accusing those associated with Clinton of doing misdeeds and this is just one of many that will show up. From what I know, I don't think Sec. Clinton knew too much about records management or FOIA so I doubt she was very involved in any FOIA process.
Vice News has this report on its lawsuit against the State Department on the FOIA request for Hilary Clinton's emails. State is seeking a delay until January of 2016 to release the emails.
It's unclear from the article why State can't make rolling releases of the material. Further, the timing is probably not good for Clinton's presidential campaign as the release would come about two weeks before the Iowa Caucuses.
Update: It looks like the Judge had the same idea I did (maybe he was reading the FOIA blog this morning!) State has been ordered to make interim releases of the material according to the AP and former Secretary Clinton has also urged State to move faster.
The Defense authorization bill working its way through Congress has set off alarm bills in the FOIA community as a draft of the bill rewrites FOIA Exemption 2 and overrides a 2011 Supreme Court decision that limited the Exemption. Politico has this on the issue.
Since the Supreme Court limited the use of Exemption 2 in 2011 there has been little legislative action to protect information that may not be protected by other exemptions. Agencies have broadened the use of Exemption 7(e) and (f), but those exemptions may not always be applicable to information formerly protected by Exemption 2. While there may be some agreement that there are a few areas of information that should be protected, it is definitely not on the language in the draft authorization bill. Further, the committees of Congress with FOIA jurisdiction (that are both currently dealing with amendments to the FOIA) should be the committees that bring forth the bill. It should not be part of a Defense budget bill.
The State Department, which had lengthy delays in processing FOIA as far back as I can recall, is now blaming Hillary Clinton's email issues for causing its FOIA backlogs according to the Washington Post.
While I don't think the Clinton email issue is helping, I also believe that the State Department has other issues that will remain long after the emails are processed for FOIA. This is because the State Department FOIA Office has no control over the files requested by the public - they must rely on the program offices to conduct the searches for responsive records. And these searches, which are collateral duties for the program offices, do not occur in a timely manner. Thus, delays in processing FOIA requests are a structural problem at the State Department that have not been addressed by the agency.
So blame Hillary's emails all you want State Department if it makes you feel better, even if that isn't really the problem.
Last December, retiring West Virginia Senator Jay Rockefeller (D-WV) placed a hold on the FOIA bill that was moving through the Senate. It was later learned that this hold was placed on behalf of the Federal Trade Commission that had concerns with the bill. Muckrock has now received, via a FOIA request, the correspondence between the FTC and the Senator on those concerns. It makes interesting reading, and also shows the power of Twitter within the FOIA community.
As many followers of record management issues know, agency emails have been in the news for the past few years, most recently in the issues concerning Sec. Clinton's email practices at the State Department.
I believe Congress should pass a law, outside of the FOIA, mandating email retention by all agencies and should fund this law with a specific appropriation. Currently, email retention is different at all agencies and is not specifically funded by Congress. I'm quite sure that there will be reasons why this idea does not move forward. However, it seems to me that if agencies are mandated to retain all email and provided the funds to pay for software to retain the emails the problem will be minimized.