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June 06, 2007

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Scott Hodes

Here is a comment from a reader--edited for non-attribution--and don't ask me who it is, I'll deny your request per exemption 6! Scott

Thank you for the invitation for your readers to comment on the proposed FOIA legislation. I appreciate your guarantee to preserve the anonymity of government employees, such as myself.

To start out, I am not in favor of either bill before Congress, as the are written. As you know, these bills are pushed very strongly by some very loud voices within the requester community (some of whom I consider good friends). Primarily, these bills are a backlash against agencies taking too long to process FOIA requests, and Congress wants to punish the Executive Branch and beat into submission. Unfortunately, many of these harsh measures will not affect the senior leadership in this, or any other, administration (Let's admit it, political appointees of either party despise the FOIA). The people they will affect are the everyday FOIA Officers. This legislation will adversely affect the jobs of your GS-7's out there who are trying to do a good job, who seriously believe that what they are doing is important, yet they are stymied in the performance of their jobs by both agency officials not complying with the law and unreasonable FOIA requesters. They are the ones whose jobs will become more difficult. And, their supervisors who don't know squat about FOIA will think that they aren't doing their job because the backlogs are increasing. Yes, I strongly believe that the measures within the new legislation will inevitably lead to bigger backlogs and longer delays. I will explain this.

First of all, as you have pointed out, Congress has never funded agencies' FOIA programs, and probably never will. Therefore, we can expect no increase in resources for compliance with the new FOIA provisions. You really can't expect my Department to take money away from [othere programs]to fund the FOIA. Nor can you expect DOJ or Homeland Security to divert resources from their important contributions to the defense of the country. Therefore, without any increases in resources, any increase in the workload of FOIA Officers resulting from the provisions of the proposed legislation will inevitably cause the FOIA Officers to transfer resources from reducing backlogs to handle the increased workload.

The legislation is hailed by many because it will allow more requesters to qualify as "members of the news media." This will have two serious consequences; more requesters will qualify for either fee waivers or reduced fees because they won't have to pay for searches, and more requesters will ask, and maybe get, expedited processing.

Concerning fees, even though fees cannot be used to discourage requesters, fees are inherently effective in keeping many FOIA requests reasonable. The existence of fees prevents FOIA requesters from asking for everything in the world. For the most part, the true members of the news media are disciplined enough not to do this, and are very willing to work with us in keeping the FOIA requests reasonable and manageable. However, the proposed legislation will cause us to consider just about anyone with a web site as a member of the news media. I like to say that, under this legislation, even the Washington Redskins could qualify! After all, they have a web site. Therefore, the meaning of "member of the news media" will be so watered down that requesters without legitimate audiences and true media credentials, and who may be less inclined to keep their FOIA requests reasonable, will have to be included within this category. This will result in an increase in the number and complexity of the requests, and this will in turn lead to an increase in FOIA backlogs, especially since there will be no increase in resources.

Concerning expedited processing, the intent of this provision is to give a special fast track to those requesters whose primary job is disseminating information quicker access to certain information. Practically speaking, this doesn't mean that the person working an expedited FOIA request must drop everything to process it. It means that I must establish a separate queue for these requests, which still must be worked first-in first-out, and done ahead of non-expedited requests. Now if more requests are expedited, which is a reasonable expectation with the new legislation, then all we really have is a transfer of a lot of cases to the expedited queue which were previously in the easy or complex queues. Net result, most requesters really won't get their information quicker, and what I consider legitimate news media representatives could find that their requests are behind a 15-year old blog master's request because the 15-year old's came in first. Of course, the potential for increased litigation is there, since requesters will use either an agency's not granting expedited processing or not complying quickly when expedited processing is granted as a way to get into court. Any increase of FOIA litigation results naturally in the reallocation of resources from closing cases reducing the backlog, to working the litigation. The result is an increase in the backlog.

Speaking of FOIA litigation, [deleted to protect commenter] I don't think that I am competent enough to address the new requirements for the awarding of attorney's fees. However, it's obvious that an intended consequence of this provision of the legislation is an increase in FOIA litigation. Any increase of FOIA litigation results naturally in the reallocation of resources from closing cases and reducing the backlog, to working the litigation. The result is an increase in the backlog (am I sounding like a broken record?). Additionally, have you read Congressman Tom Davis' comments on this subject? They are in Thomas.

OK, let's get on to the really bad part, where the Senate proposes that if agency cannot withhold certain information if it does not comply within 20 days (of course, a Court can waive this provision if it finds, with clear and convincing evidence, that the agency had good cause to comply in not complying within 20 days). Besides the point that this clearly implies that the agency is guilty unless it proves its innocence, this provision will increase litigation. What will happen practically is that agencies will withhold this information anyway. When the requesters receive a denial letter that took more than 20 days, they will be more likely to sue in court, knowing that the agencies will have to prove that they had good cause not to comply (very subjective). This provision, coupled with the attorney's fee provision, will exponentially increase FOIA litigation. As I said before, any increase of FOIA litigation results naturally in the reallocation of resources from closing cases and reducing the backlog, to working the litigation. Of course, this increase in the backlog will result in more litigation, resulting in backlog increases, etc. Any argument to the contrary doesn't understand the system.

Now, let's consider what happens if Courts do rule that we have to release this information because the 20 days were not meant. As worded, we can withhold information protected only by Exemption 1 (would endanger the national security of the United States), Exemption 3 (otherwise prohibited by law), Exemption 4 (proprietary information), and privacy information originated within a Privacy Act System of Records (would disclose personal private information protected by section 552a). Note that this last section does not protect all information normally protected by Exemption 6, only information covered by the Privacy Act. So, this could all result in the following types of information to be released: information protecting the President, information concerning the security of the [federal government], social security numbers within documents not in a Privacy Act System, information within law enforcement files that, if released, could endanger the lives of individuals, and open law enforcement investigations. The results would be disastrous.

I understand the House bill changes this provision in that we just wouldn't be able to charge fees if we tale more than 20 days. This is much more acceptable; however, the House should change that provision to still allow us to charge commercial requesters. As you know, Executive Order 12600 requires a process of submitter notification that takes, in almost all cases, longer than 20 days. Since that is the case, we should still be allowed to charge fees for these types of requests.

Scott, here's where this issue gets very personal with me. [deleted to protect individual's identity] Did you know there are personnel in Iraq and Afghanistan, that are processing FOIA requests in combat conditions? I seriously think that the writers of the FOIA never envisioned this ever happening. And what thanks do these soldiers get from Congress for doing their best in complying with this law while they are getting shot at or trying to avoid IEDs? They are told that their efforts aren't good enough, they need to work harder at getting the information to the requester within 20 days, and if they don't they will be hammered. It is an insult to a soldier who is willing to sacrifice himself in combat when he is told that he must write a declaration to prove to a court that he had good cause for not complying with the time limit provisions of the FOIA.

I understand the new reporting requirements, and a lot of them make more sense that what we report now. However, I believe that these new requirements will mean a lot more work for FOIA officers in tracking and reporting, meaning less resources for reducing the backlog. If Congress gave us, say 2 or 3 years, to get our IT systems up to speed, and fund those systems, then we would be in a much better position to comply.

Lastly, I'll address what I call the provisions, different in each bill, to create a FOIA ombudsman or oversight office. It's bad enough that these offices are unfunded. It's even worse because it's really not clear what they will do. It's very likely that FOIA requesters who are unhappy with the processing of their requests, or even unhappy with the searches or exemptions invoked, will go to this office and complain. That's fine, but the result will be the agency committing resources to handling these complaints (for which legal channels already exist). And, this means fewer resources committed to reducing the backlog.

Again, thanks for the opportunity to address these issues. I know that you and others in the requester community will strongly disagree with much of what I am saying. However, I've discussed this with many FOIA Officers, from here at the top all the way down, and we are all in agreement that what I've said here will be the inevitable results. This new legislation is seriously harming the morale of the FOIA Officers out there, and it's too bad that Congress doesn't see that and really doesn't seem to care. I also appreciate your efforts to keep my identity confidential.


Scott Hodes

Thanks reader. I agree with some of your comments--however I'd like to point out that in the Clinton administration, Janet Reno, a political appointee was a huge backer of the FOIA. It was largely through her and Louis Freeh's efforts (see, they could work together on some things) that enabled the FBI to reduce their backlog from over 16,000 requests to 2,000 requests.

Ed

PLEASE PEOPLE READ THE CASE LAW AND PROPOSED LEGISLATION, ETC!!!! A determination to accept the FOIA request is what has to be provided to the requester within 20 days. The records are NOT required to be processed and releassed in 20 days. DOJ guidance on this since 1985 has remained unchanged. Check the most recent FOIA Overview publication - "Agencies are not necessarily required to release the records within the statutory time limit, but access to releasable records should, at a minimum, be granted promptly thereafter." (page 67). FOIA Officers need only issue a determination letter (not an acknowledgement letter) within the 20 day time period. Why anyone would need more than 20 days to figure out if they have a perfected FOIA request or not has to be really unusual - reflecting more about the depth of knowledge and qualifications of the FOIA processor. If a FOIA processor can't determine if more info is needed (and initiating communications with the requester with a determination letter) within 24 hours of receiving a request, something is wrong with the FOIA specialist, not the requester. In summary, issue your determination letters within 24 hours and get that request into your first-in-first-out track. You've satisfied the 20-day requirements and removed any grounds for appeal. The only thing that could be appealed is not getting a determination letter in 20 days - records are not required to be provided in 20 days and, therefore, there is no grounds for appeal (except for those who buy into the misperception and misinterpretation that records should have been released in 20 days). And then get back to working down your backlog. Again, read the proposed legislation - it does not change the historic "issue a determination on processing the FOIA request" 20-day requirement. The only thing that the proposed legislation would require (which is unlikely to remain in the proposed language) is in the determination letter also cite the exemptions that are likely to be applied - and an experienced FOIA processor (not someone from OGC out of law school) can tell what exemptions usually are applied to the agency records under request. (More at a later time - I've got to work the backlog!)

Scott Hodes

Here's another comment from a reader who'd like non-attribution.

Reforming the FOIA is needed, and it is good that the requester community is united in seeking changes. What the requester community needs to do in addition to the sought-after changes is to demand that the Congress fund FOIA offices. Yes, "demand." Otherwise the community's great expense in time and money to seek the changes will be for naught.

Colleen

I found the anonymous posting on June 7 at 8:06am to be extremely helpful. I am writing a piece on the proposed FOIA legislation and the pros/cons of the provisions. Is there anyway you could ask this person to provide some information on the types of provisions this person would recommend and find most beneficial to the agencies? I would greatly appreciate it - he/she sounds as if he/she has inside knowledge of the problems/concerns.

Scott's Note: If the person who made the comments contacts me again, I'll be glad to post his or her answers to your questions!

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