As fiscal year 2020 gets underway, the staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- discuss their hopes and expectations for the rest of the FOIA campaign.

AB: Among my hopes for FY2020 (and beyond) are that federal courts keep in check the ill-conceived “foreseeable harm” standard by applying it only to deliberative process claims. I’d also like to see the demise of Elizabeth Warren’s proposed FOIA fixes, particularly the “public interest” test that we discussed in our last roundtable. One of the bigger question marks going forward is who will replace Melanie Pustay as director of DOJ/OIP. I’ll hold off on speculating about candidates, but I’d expect an announcement before the end of the calendar year. For fun, I’ll predict that FOIA request totals for FY2019 and FY2020 will approach 950k and 1 million, respectively.

RM: I’m with you, Allan. My biggest hope is that we’ll see some more development on the foreseeable harm standard. The D.C. Circuit is considering an appeal now, in Machado Amadis v. Dep’t of Justice, that may provide a bit of clarity. Some amici have asked the Circuit to provide more general direction on how the standard is supposed to work. If the court accepts the invitation we could see some helpful and persuasive dicta. So far, I’ve seen different agencies taking different approaches to applying the standard for each of the discretionary exemptions. The case law has only involved Exemption 5 and the deliberative process privilege, and OIP refuses to issue guidance. We’re a long way from clarity.

There are two other areas where I’m hoping to see some development. First, application of Exemption 4 in the post-FMI era. OIP issued intriguing guidance, which introduced a novel three-step analysis that wasn’t devised, in my view, by SCOTUS. The import of express or implied indications by the government of possible public disclosure could lead to some interesting case law. And that goes for “step two” and the inquiry into express or implied assurances of confidentiality at the time of submission, too. It’s an interesting time for Exemption 4.

Second, I’m eager to see what sort of FOIA reform may end up coming out of Congress. The Open and Responsive Government Act of 2019 would reinstate the National Parks standard, and even expand its application, as well as codify the D.C. Circuit’s decision in American Immigration Lawyers Association v. Executive Office for Immigration Review. I would welcome both of these developments, so I’m rooting for the bill to succeed. And I’d like to see some other FOIA reform coming into the early stages of development.

KS: I try to stay away from hopes regarding FOIA, but if I”m forced to go on the record, I’ll go with: Meaningful enforcement and/or guidance for the foreseeable harm standard, even if it’s only involving Exemption 5. Ideally, the FOIA reform bills under consideration would include further limiting of Exemption 5 as well. I’m also hoping the new director of DOJ/OIP is committed to improving FOIA more broadly, or at a minimum, will do more to encourage agencies to comply with the law. As you might expect, I’m keeping my expectations for these hopes quite low.

AB: Chin up, Kevin. But how much more money would you ask taxpayers to pay to improve FOIA operations, because a cash infusion is what it’s really going to take (not statutory amendments or finger-wagging from DOJ). Requesters like us certainly don’t help the cause much, contributing less than a fraction of one percent of actual costs. So enjoy the bargain. Plenty of government information specialist jobs are available, by the way, if you want to try to improve the system from the inside.

We may agree about wanting clarification from the courts or Congress on various issues, but it’s apparent we disagree about how we’d like to see those issues resolved. In my view, for example, Congress should repeal the foreseeable harm standard, as well as the D.C. Circuit’s ruling in AILA v. EOIR — that is, agencies should be allowed to “scope out” information as “non-responsive” even on less than a page-by-page basis. I can live with a resurrection of National Parks. No one bit on the number of FOIA requests, so do I win by default?

KS: I’m not necessarily opposed to more money for FOIA operations, but there would need to be evidence that they are trying to do more with what they have to start. For example, “scoping out” information on less than a page by page basis is a waste of time without a strong reason to support it. Frankly, a lot of time and money can be saved by releasing more records, rather than line by line redaction. I’ve seen a lot of ridiculous FOIA requests that leave me sympathetic to agencies and information specialists, but I’ve been given the runaround too many times to believe we are getting full value for the money.

My estimate for request totals: FY2019: 900,000 and FY2020: 920,000 (I think election year may slow it down a bit).

AB: Spoken like a true libertarian!