The FOIA blog

Sunshine Week - March 10-16, 2013

Sunshine Week is coming up in a few weeks (March 10-16) -- Reporter's Committee for the Freedom of the Press has this calendar of Sunshine Week activities.

While I am glad that many groups turn their attention to government disclosure for a week, I hope that these groups will join with this blog and make every day, Sunshine Day.

Supreme Court To Hear Virginia Citizen FOIA Case In February

The U.S. Supreme Court will hear arguments on February 20, 2013 on whether the State of Virginia's requirement that only citizens of the state may may request under the Virginia FOIA is legal.  Virginia filed its Brief defending its position last week.  A number of groups have filed amici on behalf of the petitioners -- the docket may be found here.

Where Is The Funding For FOIA Operations Going To Come From?

Anyone active in FOIA knows that money for FOIA Operations is always a problem.  And with the recent budget battles, FOIA Offices in many agencies have been stretched beyond thin. 

Further, the GSA travel scandal has made training almost extinct for a number of agencies and this includes FOIA training for all employees, including new ones who have very little or no experience whatsoever in the FOIA.

I see the biggest issue in FOIA for the foreseeable future as the funding of FOIA operations.  Even with the adoption of electronic processing and FOIA portals, this lack of funding will increase backlogs in requests and decrease knowledge among FOIA employees.  Its moving into a code red situation. 

What, if anything, can be done?  First, those making up the FOIA community, (requesters and FOIA employees) need to realize that this is not a situation created by the FOIA community.  As such, they need to work together to contact both Congress and agency higher ups letting them know that this situation is not satisfactory, that FOIA is a statute and needs to be funded.  Further, those at the offices in DOJ and OGIS need to work with agency FOIA staff in educating non-FOIA management of agencies in the importance of the FOIA, including keeping the money flowing.  Finally, Congress should look at ways to fund FOIA Operations either by specific line items per agencies (I"ve gotten flak in the past for this suggestion, but I've never been swayed that it would hurt) or by allowing FOIA agencies to keep the money they bring in by charging duplication and processing fees.  Congress may also want to re-look at where attorney fees come from in FOIA litigation.  They are now paid, in many instances, from the already depleted FOIA Operations.  I would suggest there should be some type of system that allows agencies to take the money from the budget's of the program offices that often create the litigation situation in the first place.

The next few months will see the sequestration/budget battles dominate the headlines.  Those in the FOIA community should remember that these discussions cut straight to their interests and should be active participants.

I'd love to hear your suggestions/comments about this issue.

More on "Clawback" -- I'm Quoted

Here's a detailed article written for the Associate of eDiscovery Specialists about the recent case in which the Department of Homeland Security attempted to have an order placed in the record that would require the requester to give back records if the agencies later deemed them to be wrongfully released.  This was ultimately denied by the court.  I also touch on the issue of funding FOIA Offices.

My Latest Article

My latest article is up at LLRX.com.  It concerns things I've learned working on FOIA during my career.

Bin Laden Death Photos Argument Made at Court of Appeals

Thw Washington Post provides this report on the argument made before the United States Court of Appeals on a request for the photos surrounding the death of Osama Bin Laden.  A decision is expected in the next few months.

Here's more on the argument from the Blog of the Legal Times.

Court Finds "No Claw Back" In FOIA Case

United States District Court Judge Gladys Kessler for the District of Columbia has ordered the Department of Homeland Security (DHS) to continue processing documents responsive to the Electronic Privacy Information Center's (EPIC) request for records concerning a joint DHS/DOD cyber security program but decided that the government was not entitled to an order allowing it to get documents back from EPIC if the government later decided that the document had been released in error. 

More can be found at the Blog of the Legal Times.

As the Department of Justice should have known, one of the principal rules of FOIA is that a release to one is a release to all.  Thus, a granting of a "clawback" to the government would have been unprecedented under the FOIA.  The concession that Judge Kessler made to the government is that they don't have to make interim releases and can release documents once they are all done being reviewed pursuant to the FOIA.

Appeals Court to Hear Osama Bin Laden Photos Case

The United States Court of Appeals for the District of Columbia will hear arguments about whether or not the government properly withheld photos of revolving around the death of Osama Bin Laden on Thursday, January 10, 2013.  More information about the argument can be found here on the Blog of the Legal Times. 

Drone Attack Information Ruled Exempt From FOIA

A Federal Judge in New York has ruled that information about legal justifications for drone attacks and other methods used to kill terrorist suspects is exempt from the FOIA.  The Washington Post has more on this decision which will probably next go to an appeals court.

The List of 2013

Happy New Year!  OpentheGovernment.org has this on what should be out (secrecy) and in (sunshine) for 2013.