Q. We learned in September 2020 that you had stepped down as the chief counsel of Citizens for Responsibility and Ethics in Washington (CREW). What have you been up to since?
A. I continue to work as outside counsel for CREW and also for POGO handling FOIA litigation for both groups. I also have remained active in crafting FOIA policy and legislation, working with a number of groups. And I co-wrote a report with four others published by Brookings Institute, “If It’s Broke Fix It,” that sets forth a policy agenda for the Biden administration. My sections focused on transparency issues, including FOIA and recordkeeping statutes.
Q. CREW has been well known for its FOIA activities since it was founded in 2003. Indeed, The FOIA Project reported that CREW had filed 77 FOIA lawsuits through May 2017, which was the third most filings of all nonprofit organizations since October 2001. Can you identify a few cases that you are particularly proud of?
A. It’s hard to cull out a few since I try to dedicate my all to each case. But among the ones I am most proud of are CREW v. FEC, which clarified the meaning of what it means for an agency to make a “determination” within 20 business days, and CREW v. DOJ, dealing with records concerning DOJ’s termination of former FBI Deputy Director Andrew McCabe. The first case presented an issue that, while a core element of FOIA, had never been defined until the D.C. Circuit ruled that “determination” means telling a requester what the agency is withholding and why and what it is releasing. As for the McCabe case, it was clear--at least to me--that in firing Mr. McCabe, then-Attorney General Sessions was caving to the pressure from then-President Trump. DOJ refused to release records, claiming there was a pending investigation. I continued to press and the court finally gave the government a drop-dead date by which it had to either prosecute or release the records. DOJ declined to prosecute and released a treasure trove of documents that undermined its justification for firing Mr. McCabe.
Q. Before joining CREW, you worked at the U.S. Department of Labor, the U.S. Department of Justice’s Civil Division, and the Federal Communications Commission. Did you work on FOIA matters at all three agencies or primarily at DOJ?
A. I worked on FOIA litigation only at DOJ, first as a line attorney and then as a supervisor of all government information litigation. That perspective has really shaped my views now as someone who is a proponent of very robust transparency laws and sues the government for information.
Q. You’ve done quite a bit of teaching in your spare time. What are a few tips that you can give to FOIA requesters?
A. Be nice – be very nice—to agency FOIA personnel who reach out to you. They can be enormously helpful in getting you the documents you actually want and need in a reasonable timeframe. Also when drafting a FOIA request consider it from the perspective of the first agency official who will deal with it, who usually is the person who decides which agency components are likely to have responsive records. That person may not be as well versed in the subject matter as you are, so your request may have to educate, especially by providing the factual background to your request.
Q. And what about tips for FOIA professionals in the federal government?
A. Understand that FOIA is a structural necessity for a democracy, not just an annoying law, and approach requests from the perspective of what can be released, not withheld. Talk to requesters, who often are willing to compromise if it means getting what they truly want more quickly.
Q. If you could change one thing about the FOIA, what would it be and why?
I would eliminate Exemption 5, which I believe is antithetical to the fundamental purpose of FOIA: to let the public know what its government is doing and why. Agencies overuse Exemption 5, refusing to provide documents that explain the why and how behind a decision.
Q. Where do you see FOIA law heading in the near term? What are the next “hot topics”?
A. The time is ripe for major FOIA reform, and I am hopeful we can accomplish that. In my view the FOIA is broken and can be fixed only by systemic reform that gets at agency overuse of exemptions, agency refusal to comply with mandatory disclosure requirements, and a litigation process that is too heavily weighted in the government’s favor.
As for the next “hot topics” we will continue to see litigation focused on core components of FOIA, such as What is a record? What burden does the foreseeable harm standard impose on the government?
Q. Where were you born/grow up and how did you end up in the D.C. area?
A. I was born and grew up in Schenectady, New York. I came to D.C. after graduating from college and then went to law school here at the National Law Center at GW University.
Q. What was your first job ever? What did you like or not like about it?
A. I worked part-time in a library in high school. I loved being around books, but did not like the tedium of reshelving and doing dull, rote things.
Q. If you could meet any historical icon, who would it be and why?
Abraham Lincoln. After seeing how divided our nation has become over the past four or more years I would like to better learn from him his thoughts on a divided nation and how to bring it together.
Q. What are some of your favorite books? Movies?
Favorite books include Deacon King Kong by James McBride and The Underground Railroad by Colson Whitehead. Favorite movies include Goodfellas, Thelma and Louise, and Toy Story.