The FOIA blog

Cert Sought at Supreme Court in Exemption 4 Case

The Scotus Blog reports on an Exemption 4 case that has wound its way through the 8th Circuit and may end up being the next FOIA case to be heard by the Supreme Court.  The case concerns a request by the Argus Leader to the Department of Agriculture for annual SNAP redemption totals for stores that participate in the SNAP program.  The government tried to exempt the information and in a rare FOIA trial attempted to demonstrate that the requested material was protected pursuant to FOIA Exemption 4.  The District Court and eventually the 8th Circuit both ruled that the exemption did not apply and that the material should be disclosed.  A trade group, which was responsible for the appeal of the case, is now pushing for the Supreme Court review of the decision.  Briefing is underway and the Response to the Writ of Certiorari is due on December 14.

 

EPA Tries to Speed Up FOIA Releases

E&E News has this on the EPA's statements about its attempts to speed up releases of certain FOIA requests in which the agency has decided to involve high level senior, (often political appointed) officials.  This procedure has been criticized as a way the agency "slow walks" the requests through the process often delaying the release of this sensitive and embarrassing information.  The EPA's decision to attempt to speed up the pace of this "review" was recently made known in a court filing.

I've written about the issue of involving high level agency officials in the FOIA process many times.  Here's my takeaway - there is nothing wrong with letting high level public facing officials of any agency know that a FOIA request is coming on a matter of public interest.  However, the non-FOIA officials should have absolutely nothing to do with the decision to release or withhold the documents - this should only be done by those who are paid to make FOIA decisions.  If this was the procedure set up, no delays would occur in the processing of the documents in the first place.   

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Ideas for FOIA Oversight - FOIA Guidance

In October, I wrote about the DOJ's FOIA Guide and the fact that it hadn't been updated since 2015.  As of today, it still hasn't been updated.  The failure to provide substantive guidance on various FOIA matters, which have been changed by both statute and court decision since last updated by the DOJ is an area that the new Congress should take a look at when it convenes in January.  That may help prod the government to give its own agencies, as well as the public, updated FOIA guidance that is sorely needed.   

Whitey Bulger FBI File Request Delayed

The Boston Herald reports that the FBI is delaying the release of the late Whitey Bulger.  The article doesn't give much detail as to the the request itself, only that the Herald is appealing the delays and the FBI's proposed fees on the request.  As the Herald should be classified as news media, and the FBI isn't making the statutory time period in processing the documents, its unclear as to what fees they are estimating on the request.  

Intelligence Community Found To Not Manage FOIA Intelligently As It Could

An Inspector General's Report on the Intelligence Communities overall management of its FOIA Operations found a number of ways in which the Intelligence Community could improve its overall management of FOIA Operations.  The report does not blame the issues entirely with the Intelligence Community saying it lacks adequate resources in many cases but does find ways in which the management of FOIA could improve.  NextGov has more on the findings.

FY 2018: Record Year For FOIA Litigation

The FOIA Project has released a report on FOIA Litigation for FY 2018.  It finds that a record number of FOIA lawsuits were both filed and were pending at year end.  The report details the defendants, the subject matter and other information about FOIA litigation trends.  It's a worthwhile read for FOIA nerds everywhere.

MidTerms: What's Next For The FOIA?

The midterms are over, and Democrats will be in charge of the House of Representatives while Republicans remain in charge of the Senate.  How does this effect the FOIA?

First, remember that the Legislative and Judicial branches of the government are not covered by FOIA.  So, the results of the election won't change the fact that the public can't get records from these branches by making a request.  And the chances of that changing are about zero percent.

With control of the House, records that up until now had been available to Democrats only by FOIA requests (which helped to lead to record amounts of FOIA litigation) will now also be sought by subpoenas.   The advantage of a Congressional subpoena over a FOIA request is that the subpoena is not subject to the nine FOIA exemptions - the administration may try to negotiate the non or limited production of certain matters, or make Congress sue for enforcement of the subpoena.  Backlog delays and the painstaking process of redacting documents isn't something that Congress will allow for the records it seeks under its subpoena powers.  If Congress takes up its oversight process in earnest, a by-product of this may be less FOIA litigation at the agency level (or at the very least, a leveling off of the rates of increases in litigation since the beginning of this administration).

Another byproduct of the election may be additional funds for FOIA Operations.  This is not a slam dunk as FOIA Operations have historically had issues being funded under Congressional control of either of the parties.  However, Democrats may be more likely to provide more money for government operations overall and that may seep down to FOIA Operations.  However, as the policies of the last two years have resulted in record deficits, additional funding for any government operations may be hard to come by.

Depending on the agency, FOIA Operations may be hampered by Congressional Oversight Investigations.  Each agency sets up its workforce independently - and which offices are tasked with seeking and producing records for FOIA and Congressional subpoenas may or may not be the same.  Those that are responsible for both duties may see an increase in workload - and won't be able to ignore Congressional subpoenas as easily as they do for the 20 working day rule for responding to FOIA requests.  

Of course, the other thing that may happen even before the new Congress is sworn in is that there may be another partial government shutdown.  Those agencies without a budget will have their FOIA Operations shut down meaning that FOIA requests in the pipeline will not move along even before the new Congress is sworn in.

There are no guarantees for the future.  The one thing in FOIA that can be seen in the crystal ball is that there will continue to be conflict between requester and agency and agency FOIA Operations and agency Program Offices.  Further, there will, for the next two years in some agencies be a conflict between the career employees of the agency and those politically appointed when it comes to releasing "embarrasing" items under the FOIA.  Unfortunately, no election will likely fix these issues.

Federal News Radio: FOIA Workforce Shortages

My friend and former co-worker, Alina Semo, was recently interviewed on Federal News Radio on the topic of FOIA Workforce Shortages.  The article is spot on - and as readers of this blog know, FOIA work should not ever be considered punishment, something that I hope a Congressional investigation will look into at State Department in the future.