The FOIA blog

IRS Sued Over Bonus Information

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!

Follow Up: New FOIA Exemption Stalled in Senate

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.

Monday FOIA News Roundup

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.

Fillibuster Successful on New FOIA Exemption

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. 

McConnell's War on Transparency?

Senate Majority Leader Mitch McConnell (R-KY) is attempting to place the Cybersecurity Information Sharing Act (CISA) as part of the pending National Defense Authorization Act (NDAA) without allowing any debate and amendments on the CISA itself. 

The problem for the FOIA community is that the CISA creates a very broad FOIA exemption as described in this memo from Open the Government.  None of the congressional committees in the Senate or the House that have jurisdiction over the FOIA have had any hearings on this proposed exemption.  Minority leadership of the Senate have urged McConnell to bring CISA to the floor as a stand alone bill so that it can be debated and amended. 

There is no doubt that Cybersecurity is important; however, as the Patriot bill debate should have demonstrated to McConnell, pushing through legislation without allowing changes for privacy and transparency isn't the best route to take. 

Update:  Politico has this detailed article on the entire bill and the Democrats planned filibuster.

FOIA Training Opportunities

Just a reminder that the American Society of Access Professionals is offering three different training opportunities in the next few months.  Next week in Denver (a limited amount of slots remain available), July will see the National Training Conference in Arlington, VA and September will be in Chicago.  I'll be at all three, and hope to see many of you.

You can find out more and register here.

Categorical Denial of Privacy Exemption Remanded

The U.S. Court of Appeals for the District of Columbia Circuit has remanded a case in which the Bureau of Prisons attempted to categorically deny many different types of individuals names and identities under the privacy exemptions of the FOIA (6 and 7(c)).  The Court ruled that the categorical denials were too broad and the were not sufficiently weighed against the public interest.  The case will go back to the District Court where the government will have to provide a much more detailed Vaughn index and the Court will have to weigh the privacy interests against the public interests in disclosure. 

AP Summary of House Hearings

The AP has this summary of the House Hearings on FOIA held this week. 

I think there are a couple of takeaways - First, there needs to be better funding for FOIA operations be it agencies giving more of their direct funding or Congress specifically making FOIA funding levels part of the funding equation.  Second, agencies need to improve their FOIA performance - they need FOIA Officers who have backgrounds in FOIA and work in it full time, not as collateral duties like many who testified on the Hill this week.  And in improving FOIA performance, agencies with FOIA advisory roles like DOJ and OMB (fee guidance) need to be more hands on and be willing to make tough decisions on FOIA issues.

Mid Week FOIA Roundup

While the House Committee on Oversight and Government reform holds day 2 of its FOIA hearings, there are other stories in the FOIA universe.

EENews has this on the financial agencies attempts to change language in current FOIA legislation.  Briefly, the agencies that are supposed to monitor the financial industry is worried that the pending legislation will make it less likely that those it monitors, audits, investigates and (sometimes) charges with financial crimes will share information with theses agencies if the legislation passes.  The agencies believe (wrongly in my opinion) that the changes in the law will bring about additional FOIA litigation that will possibly cause some of this information to be released.  Of course, as the Exemptions that affect these issues are not changing under the legislation, this argument/concern may probably more about blocking changes to the FOIA for the purpose of blocking changes to the FOIA.

The House GOP has what it believes is a way to fix the FOIA problems at the State Department according to the National Journal.  It would reduce operational funds to State until it fixes its FOIA and email problems.  Of course this is silly for a number of reasons.  FOIA operating funds aren't given by Congress, and State can just cut its FOIA program more.  The way to improve FOIA operations and email retention issues is to provide more money directly to these programs as well as to require operational change of top tier FOIA and records management staff.  State has had more than a few top FOIA staff come and go over the past few years and Congress hasn't looked into this issue.

Finally, the White House has a great idea according to the Hill - make Congress subject to the FOIA.  Many state legislatures are subject to their state's open records law, so why shouldn't Congress?

House Oversight FOIA Hearing - Day 2 Witnesses

The House Oversight and Government Reform Committee has announced the government's witnesses for day 2 of its FOIA hearing.