FOIA Focus: Kirsten Mitchell, Office of Government Information Services

Seneca Falls Convention, 1848

Q.  You joined the Office of Government Information Services in May 2010, less than one year after it opened for business.  Belated congratulations on your 10-year work anniversary!  For those who might not know, what is your role at OGIS?

A. Thank you! My roles at OGIS have evolved over the years. My current role is two-fold: I lead the office’s review of agency FOIA policies, procedures and compliance, and I manage the FOIA Advisory Committee as its Designated Federal Officer. In the first role, I oversee a wide range of assessments, including those of FOIA issues that cut across agencies. In some cases, these two roles dovetail nicely as some of the Committee’s recommendations call on OGIS to assess various FOIA issues. Woven through both roles — and indeed through all of OGIS’s work — is serving as a listening ear and advocate for the FOIA process as the FOIA Ombudsman’s office. In OGIS’s early days — before the establishment of the compliance program and the Advisory Committee — I helped establish OGIS’s dispute resolution program and worked hundreds of cases helping requesters navigate the FOIA process.

Q.  What would you say is different about the office now compared to 2010, aside from pandemic-related issues? 

 A.  The biggest difference is that OGIS is now baked into the FOIA process in a way in which we were not in those early days. Before Congress passed the FOIA Improvement Act of 2016, our role was fairly limited to the post-appeal stage of the FOIA administrative process, and many agencies were unaware of our role and were not informing requesters of our services. Now, the statute requires agencies to alert requesters to our services at various stages throughout the FOIA process — this resulted in a huge increase in our caseload. Another difference is that we have earned the trust of agency FOIA professionals and requesters who know they can come to us for informal, confidential assistance with the FOIA process.

Q.  What is the most frequent type of complaint that OGIS receives from requesters?

A. Delays have always made up a large portion of the inquiries we receive and that has increased during the pandemic. While some agencies seamlessly transitioned to a virtual work environment, others were unable to for a variety of reasons, including working primarily with classified records or using a FOIA tracking/processing system that operates in a classified system. Some pandemic-related delays are because agencies are unable to access paper records stored in Federal Records Centers which by and large have been closed during the public health emergency. We frequently hear from requesters who are confused about what to do next in the FOIA process: requesters may contact OGIS instead of filing an appeal, or contact OGIS and the FOIA Public Liaison and file an appeal, or any combination thereof. One of our roles is to clarify options to help requesters choose their next steps while not losing their administrative rights. 

Q.  Which complaints are the most difficult to resolve through mediation?

A. Two answers. The first are those cases which involve an exemption in which there is no discretion — Exemption 1 is a good example — and thus no room for negotiations. My second answer: those cases in which the requester (or, on occasion, the agency) is so convinced that they are correct that they cannot see beyond their own position. Dispute resolution works when parties are able to move beyond past grievances and be open to new possibilities.

Q.  Can you tell us about an OGIS mediation success that stands out to you?

A. We facilitated a resolution between the Naval Research Laboratory (NRL) and National Public Radio (NPR) regarding a FOIA request for records about a World War II-era medical experiment that used human subjects. NRL released the records in full, but the release included photographs that were not of a high-enough resolution to be useful to NPR. NRL re-scanned the images and while better than the first set, the images were still not of high enough quality to publish in a companion story on NPR’s website. NRL closed the request and NPR contacted OGIS to see if the dispute could be resolved outside of the administrative appeal process. OGIS facilitated communication that included an exchange of information regarding scanner settings. NRL released a set of photos that met NPR’s needs and avoided an appeal. I am able to share this story with your readers because we got permission from both NRL and NPR, and included it in an OGIS Annual Report several years ago. 

Q.  When did you first encounter the FOIA?

 A. I first used public records laws as a reporter in North Carolina in the 1990s. One early encounter I had with the federal FOIA occurred in the 1990s when, as a new Washington correspondent for a North Carolina newspaper, the FBI called to confirm my address because it had a huge box of documents responsive to my FOIA request — which had actually been filed not by my predecessor but by his predecessor. The records related to COINTELPRO, the FBI program aimed at surveilling and infiltrating domestic American political organizations. The records were fascinating and I was able to track down some of the subjects of the FBI’s surveillance who had been active with the Black Panther Party in North Carolina.

Q. Prior to joining OGIS, you worked for the Reporters Committee for Freedom of the Press, as well as the Sunshine in Government Initiative.  Could you share one of your best experiences working with these media groups?

A. When I was at the Reporters Committee, I did an investigation on secret dockets in U.S. District Court in Washington, D.C., in which I found that in the five years prior, 469 cases had been kept completely off the public docket and prosecuted and tried in complete secrecy, with no public knowledge of the cases’ existence and no way for the public to challenge the secrecy. At the time of the project, federal appellate courts in two circuits had ruled that secret dockets were unconstitutional. Several months after the investigation, the U.S. Judicial Conference — the chief policy-making body for the federal court system — strongly recommended that all federal trial courts with electronic docketing systems clearly indicate to users that cases are sealed instead of displaying a notice reading “No such case.” Then-Chief Judge Thomas F. Hogan of the U.S. District Court in Washington, D.C., credited the Reporters Committee with uncovering the existence of the off-the-docket cases, and said the organization “did a good favor for us in discovering them.”

 Q.  We understand that you were involved with working to pass the OPEN Government Act of 2007.  Aside from the creation of OGIS, what were the most important reforms in that legislation, and how do you think they’ve fared in application over the twelve years or so?

A. My involvement with passing the OPEN Government Act of 2007 during my time at the Sunshine in Government Initiative was somewhat indirect in that I was not involved with lobbying for the bill’s passage. I spent much of my time doing behind-the-scenes work such as putting together a database of stories made possible by FOIA to show that FOIA is important in all congressional districts, diving deep into data provided in Annual FOIA Reports, and researching state and international freedom of information ombudsman models. With regard to reforms in the 2007 FOIA legislation, one of the most important was the introduction of dispute resolution into the FOIA process. The OPEN Government Act of 2007 codified the FOIA Public Liaison role that President George W. Bush created in signing Executive Order 13392. Prior to 2007, the only remedy for a dissatisfied FOIA requester was to sue. Dispute resolution provides another route.

Q. Where do you think FOIA reform needs to head in the future?

A. I see a perfect storm brewing between the need for technology generally and artificial intelligence specifically, government funding for such technology, and what I hope is an increased interest in our nation’s records as a way to hold the government accountable and strengthen our democracy. Any future FOIA reforms are going to have to tackle those issues.

Q. As someone who has been a requester and now works within the federal government, what do you think is the most important thing that requesters and FOIA professionals could learn from one another?

A. Patience and perspective. It is really easy to jump to conclusions about why something is instead of asking questions that might shed light on the why. Entities like the FOIA Advisory Committee, which has members from both inside and outside and government; the American Society of Access Professionals (ASAP), a nonprofit professional organization that brings together requesters and agencies; and, I might add, OGIS, do a good job of bringing both sides together and fostering conversation, which leads to mutual understanding and respect.

Q. What is your proudest accomplishment(s)?  Regret(s)?

A. No single accomplishment per se, but I am proud to have had two careers dedicated to public service, first as a journalist working in a profession enshrined in the First Amendment and second as a civil servant at the National Archives, an agency whose strategic goals include “Make Access Happen.”

 Q.  If you could travel back to any time and place for one day, what would you do and why?

 A.  This is a tough question, the answer to which changes daily. Today’s answer: the 1848 Seneca Falls convention on women’s rights (which was technically two days.) While many opposed Elizabeth Cady Stanton’s request to pass a resolution on the goal of women’s suffrage, Frederick Douglass spoke in favor by arguing that he could not, as a Black man, accept the right to vote if women could not also have that right. Douglass later diverged from that view when he supported the 15th Amendment, which banned discrimination based on race, but not on sex. This time in history interests me particularly now because of 2020’s celebration of the centennial of the 19th Amendment giving some but not all women the right to vote and our national reckoning with issues of racial equity.

 Q.  Name some of your favorite movies or books.

 A. I’ve got a girl crush on author Ann Patchett who your readers might know for her latest novel, Dutch House, which was on several bestseller lists last year. Patchett’s 2001 novel, Bel Canto, based on the Japanese embassy hostage crisis in Lima, Peru, is my favorite of her eight novels: a gripping look at what it means to be human.

FOIA Focus: Anne Weismann, Esq.

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.

FOIA Focus: Richard Huff, founding director of OIP

Pebble Beach Golf Links—7th Hole (Par 3)

As a member of the Senior Executive Service, Richard Huff served as one of two co-directors of the Office of Information and Privacy from the Office's creation in 1982 until his retirement in 2005. He was the official designated by the Attorney General to act on all administrative appeals from denials under the Freedom of Information Act and Privacy Act of 1974 by Department of Justice components. Mr. Huff also oversaw the development of the Freedom of Information Act Guide & Privacy Act Overview,” the Department of Justice’s treatise that was updated and distributed every other year to more than 22,000 recipients.

How did you end up working in FOIA and at OIP? 

I was in my seventh year on active duty with the Army assigned to the Personnel Section, Administrative Law Division in the Office of the Judge Advocate General at the Pentagon, when I was asked to join the predecessor DOJ office by one of my former colleagues at the Pentagon. I’m not sure I knew how to spell FOIA at the time.  

Is there a FOIA issue, policy, or case that you worked on during your tenure in the government that you are most proud of? 

There are two.  First, representing the government before the D.C. Circuit Court of Appeals.  The case was Schwaner v. Dep’t of the Air Force, 898 F.2d 793 (D.C. Cir. 1990), in which we argued for an expansive view of a “Low 2.” The oral argument went extremely well, which left me all the more shocked when the opinion came down 2-1 in favor of the requester.  I was also very proud, although quite nervous, to have represented the Department of Justice twice in congressional hearings -- once at the subcommittee level and once at the committee level.

How have you enjoyed your retirement? 

Although I know it isn’t supposed to work out this way, but I now play more golf and my handicap has actually increased by several strokes.  My wife and I also do some traveling with friends, family, and for work.  This year included New Orleans, a cruise of the western Caribbean, visiting natural parks and playing golf in Costa Rica, staying with family at Lake Coeur d’Alene, ID before going on to Yellowstone, and teaching in Chicago, Morgantown, WV, and Albuquerque.

We know you have remained very engaged in FOIA-related activities.  For the benefit of our readers, can you discuss some of those activities? 

I have served two terms as a member of the American Society of Access Professional’s Board of Directors and have taught various aspects of the FOIA and Privacy Act, primarily for ASAP, the Graduate School USA, and AINS, from one hour through three days to diverse groups and those of an individual agency.  Additionally, I co-authored a law review article on Exemptions 6 and 7(C) as they apply to government employees.

What advice would you give to the next director of OIP?

Two points.  First, be as fortunate as I was in never having been ordered by a political boss to do something I believed violated the law.  Second, work hard to be a supervisor who is respected, whose requests are followed, and, if possible, liked.  

Would it be more beneficial for OIP to be managed by two co-directors, like it was until you retired?  

It worked very well for the two us in that we largely divided the substantive work in the office and shared the personnel management.  I don’t know how well two other individuals could work this out, especially over almost 25 years.

Three years ago, DOJ issued for public comment a draft policy creating a “Release to One, Release to All” presumption for FOIA processed records.  What are your thoughts about this draft policy, which DOJ has yet to implement? 

I favor it.

Following up on that, would you prefer a simultaneous release to the requester and the public, or would you prefer a period of exclusive use for the requester? If the latter, how many days of exclusivity seem reasonable to you?

I favor disclosure to all, no exclusivity.

If you were in Congress, would you support or oppose restoring “high” Exemption 2 and the National Parks test for Exemption 4? 

I favor restoring both, even though the first would result in a bit less information available to the public. The second proposal would result in the public having a much greater understanding of how business and government interact, particularly in the contracting process.  I would go even farther on a part of Exemption 4:  many states and at least one foreign nation of which I am aware disclose all contract prices (including unit prices), and companies still do business with them.

Many legislators and members of the FOIA community have expressed concern over so-called “sensitive review” and consultations with the White House regarding politically sensitive requests.  Do you think there is a role for political appointees and the White House in the agency FOIA process?  If so, is there a limit to that involvement? 

During my time at OIP I had a standing agreement that, with one exception, I would advise my political supervisor of any disclosure that was likely to be in the news at the same time I made the disclosure -- so he or she would be aware of it, but couldn’t stop it.  The one exception was for records of that office; then, just as for records of any other component of the Department of Justice, I would discuss the matter with them before making a disclosure determination.

What do you think are the next “hot” FOIA issues? 

Exemption 4, as discussed above. 

Where is FOIA law heading?

Legislatively, over the long run, toward more disclosure, which has been the congressional trend over the years.  If there is anything I believe Congress could cut back on, it would be that we shouldn’t have to collect so much data.  For every hour we spend collecting data or writing a report, we take an hour away from processing a request.  From a processing standpoint, I have been surprised how much time can, in many cases, be saved by the use of artificial intelligence computer programs. 

Have you ever submitted a FOIA request or been tempted to do so? 

No, I have not; yes, I have been tempted to do so. 

What other areas of law might you have practiced if not disclosure law? 

Perhaps corporate acquisitions and mergers.  I understand the pay is a bit better.

FOIA Focus: Josh Schopf, Esq.

Tell our readers a little bit about your professional background.

I started my career in the big law firm world before transitioning to the government, where I worked at the Department of Homeland Security. I then went back to the private sector before landing at the Cause of Action Institute, where I’ve spent nearly 6 years. At CoA, I have focused on regulatory and administrative litigation.

When did you first encounter the FOIA?  Was it at DHS or in the private sector?

I first encountered FOIA at DHS, where I worked at the TSA Chief Counsel’s Office and at DHS OGC.  My dealings with FOIA back then were primarily collateral and included searching my own records in response to requests.  One of the notable experiences I had was reviewing records pertaining to Hurricane Katrina, which were then in high demand by both FOIA requesters and congressional committees.

I know you have submitted a number of requests on behalf of Cause of Action Institute.  Have you enjoyed being a requester instead of a government responder?  Which requests stand out to you or are memorable in some respect?

In some respects, I’ve enjoyed being a requester; it’s a lot easier to receive documents than to do the work of producing the documents. I’ve been requesting records based on the needs of clients or the concerns of my organization, so we’re really interested in the responses. On the other hand, it is often frustrating waiting for responses that are not forthcoming, or getting responses that seemed lacking in certain respects.

One request in particular stands out. We discovered that the IRS was not preserving instant messaging records in accordance with the Federal Records Act. In order to confirm this was true, I crafted a FOIA request seeking instant messaging records of a handful of agency officials over a discrete period of time. We assumed that such records would not have been preserved. This assumption proved correct when the IRS responded that it deleted all such messages after a 14-day period. We were then able to use this response as part of a lawsuit seeking to compel the IRS to properly preserve instant messages. After we sued, the IRS agreed to start preserving messages in accordance with the law.

If you could change one thing about the FOIA statute, what would it be and why? 

Just one? In truth, I think the whole system is broken. I would be willing to extend the government’s response deadline. The government has only so many resources to put toward FOIA and extending the deadline might eliminate some wasteful litigation.

If the federal government would release any records you requested, what would you ask for and why?

I could give you a cliched answer about the Roswell files or something along those lines, but I don’t believe in aliens or conspiracies regarding aliens. Since you’ve pressed me on this, I’d say the complete file regarding the St. Louis, a ship full of European Jews refused entry into the United States during World War 2.

Where were you born/grow up?   How has it changed since you were a kid?

Silver Spring, Maryland. It seems like a more diverse place than when I was a kid. Downtown Silver Spring in particular has undergone a transformation, with such venues as the AFI theatre and the Fillmore concert hall. We rarely had a reason to venture downtown growing up.

What was your first job ever?  What did you like or not like about it?

Probably delivering newspapers as a kid, but I don’t remember that job very well.  My first professional job was as a college summer intern for the U.S. Attorney’s Office in Washington. DC. I enjoyed working with the AUSAs and sitting in on some trials. This was a volunteer position, so I did not enjoy working for free.

If you could meet any historical icon, of the past or present, who would it be and why?

I’ll give you two. First, the biblical Moses. So many questions I’d want to ask him, like how bad was that frog plague? The second would be Rembrandt van Rijn. I’d complain to him that he was responsible for my parents dragging my siblings and me to every art museum in Amsterdam when I was 7 years old.

If you could watch only one movie again, which one would it be and why?

That’s tough. Perhaps Back to the Future, which is almost a perfect movie. Recalls my youth (the 80s. not the 50s) and also holds up remarkably well.

What occupation other than your own would you like to attempt?  Which occupation would you not like to attempt?

Something in the professional sports world. Running a baseball team would be great! I really admire people who can build things and work with their hands, like construction workers, but I would not want to work outdoors subject to the elements. Fortunately, I have no skills in that department.

 What natural gift would you like to possess?

The ability to hit a baseball like Aaron Judge.

FOIA Focus: Eric Bolinder, Esq., Cause of Action Institute

When did you join Cause of Action and what are your main areas of practice?

I joined CoA in July of 2014.  My practice focuses on administrative law, including litigation in both federal district and appellate courts.  I also do a lot of transparency work, engaging in strategic oversight of the executive branch through investigations and FOIA litigation.

When did you submit your first FOIA request and what did you ask for?

My first FOIA request came in Fall of 2014.  It was to the Fish & Wildlife Service seeking a combination of records about broad subject areas and emails from specific individuals.  Reading it (I managed to dig it up for this interview!), it’s amazing to see how much I would change given the FOIA experience I’ve gotten in the past 5 years.  Narrower, focused FOIAs with defined search terms are the best way of getting quick FOIA productions

What is the most unusual agency response you have received to a FOIA request?

Oh this is one of my favorite FOIA stories.  One time I FOIA’d a number of agencies for text message records, which should be available under the statute.  However, most agencies simply do not have the technology to process them.  One agency, in an effort I appreciated, didn’t seem to know it could screenshot cell phone screens.  Instead, they took agency Blackberries, pulled up the texts, and then put them face down on a copy machine.  They then scanned those copies in and sent them to me.  I still laugh thinking about that one.  It’s also quite revealing of how far behind some agencies are with basic technology. 

If you could change one thing about the FOIA statute, what would it be and why? 

I think every FOIA litigator’s default response here would be to narrow exemption b(5), which I agree with, but let me try something out of the box.  On administrative appeal determinations for withholdings, agencies should be required to provide a sort of mini-Vaughn index.  Not something that hits the level of what’s required in litigation, but still requires a sworn declaration that the agency acted in good faith accompanied by a short explanation of the redactions.

In a recent ruling, a district court agreed with your argument that the FBI failed to show that exceptional circumstances justified a delay in processing documents.  What is the significance of this decision?  

The FBI has been seeking Open America stays in a number of its cases, asking for years of delays on releasing documents.  For our nation’s premier law enforcement agency, such delays on transparency are not acceptable.  Judge Kollar-Kotelly held that the FBI had not shown any exceptional circumstances, such as a spike in FOIA requests, and should be able to handle requests as quickly as usual.  This is critical because lawyers can take this decision and use it to stop the FBI’s attempts at Open America stays in other cases.  And, beyond that, it further establishes the bar all agencies must meet to get these onerous extensions.  In our case, the FBI had asked for a delay until December 25, 2020!  As much as I’d like to wake up to records under the tree…   

Where were you born/grow up? Where is your favorite hometown place to visit?

I was born in New York and grew up in Lancaster, PA. Favorite place is Lititz Springs Park.

If you could meet any historical icon, of the past or present, who would it be and why?

The Apostle Paul, who wrote nearly half of the New Testament.  Would love to spend time talking to him about his encounter with Christ, ministry, and the Gospel.  Thankfully, he wrote a lot of that stuff down already!

If you could watch only one movie again, which would it be and why?

Return of the Jedi, which I do watch again and again.  It’s not the best Star Wars movie, but it has it all: lightsaber duels, epic space battles, and Ewoks.  (Ok, just kidding on the last one).

It is no secret that the New York Yankees are your favorite baseball team.   Who would make your all-time best lineup?   

1B – Lou Gehrig

2B – Robinson Cano

SS – Derek Jeter

3B – Alex Rodriguez

C – Yogi Berra (Sorry Allan)

OF – Micky Mantle

OF – Babe Ruth

OF – Joe DiMaggio

SP – Roger Clemens

RP – Mariano Rivera

What are you really bad at that you would like to be better at?

Prayer, which has been a lifelong struggle for me.  It is such a privilege to be able to commune daily with God in prayer, and it’s something I’ve been working hard on lately. 

FOIA Focus: Update to Q&A with Ian Smith

Nearly two years ago, this website published an interview with Ian Smith, whose job responsibilities then included submitting Freedom of Information Act requests for the Immigration Reform Law Institute.  Earlier this week, The Atlantic reported that Mr. Smith had recently resigned as a program analyst at the U.S. Department of Homeland Security following the revelation of emails connecting him to white-nationalist activists.  To our further surprise, The Atlantic referenced several portions of our interview of Mr. Smith.  Although The Atlantic did not believe it was necessary to contact us for comment, we wish to inform our readers that we have never been aware of Mr. Smith's activities, nor do we endorse the views of white nationalists. 

FOIA Focus: Darin Gibbons, Esq, Director of Investigations, Republican National Committee

What are you main responsibilities at the RNC?

I mainly focus on researching and developing public records strategies for Democratic political targets who are potential candidates for president in 2020. Some of these folks are established national figures with solid research already done on them, but others are rising stars and haven’t gained much attention yet. In addition to building a profile of them through news sources, my main focus is digging into public records and court records.

I assume that the vast majority of your FOIA requests, if not all of them, target Democratic politicians.  What types of records are you trying to gather?

There are basic records that I will request for any target after doing some initial research. If they have had held public office or worked as an employee for state or federal government, I will try to request as much as I can of their personnel records, travel logs, gift logs, schedules, and office communications. Often times, this paired with research of news sources can start building a profile of their professional background and allow us to identify areas we may want to investigate further through additional records requests or field research.

What is the most unusual or frustrating response you have ever received to a FOIA request?

When I was at America Rising, we were working on a state governor’s race. The Democrat running was then the attorney general of the state and we were requesting documents from his office. We received a reply from his office that they had a few dozen pages of responsive documents. The election was only a few weeks away and his office, while cooperating, the office seemed to make a few additional steps to fulfill the request, so there was this back and forth that successfully delayed the process until after Election Day.  

What is the most personally satisfying result you have ever had from a FOIA request?

There was one race where a former state attorney general was running for governor. We got some of his expense logs through a records request and they had tried to redact a few things with a black marker. However, when they photocopied it, you could see right through the redactions and we were able to read some of the expenses from his hotel bill, like overpriced waters and alcohol.

If you could change one thing about the FOIA statute, what would it be and why? 

I think a lot of the exemptions are too broad, and this is often times even worse on the state level. If an agency doesn’t want to cooperate or make it more difficult for you to obtain what you are looking for, the exemptions make it really easy to do that.

If the government would give you unrestricted access to records on any one subject you requested, what would you ask for and why?

Aliens. I want to see all the documents on Area 51, Roswell, the moon landing and space programs and anything in the area of extraterrestrials.

Where were you born/grow up, and which hometown sports teams do you root for the most?

I was born in New York City, but moved to Massachusetts when I was young and grew up in town called Rockport, MA.  Obviously, I root for the five-time Super Bowl Champion New England Patriots, and other Boston teams, but I don’t follow as closely as football. I’ve also been adopting the Nationals as my National League team, but they’re pretty disappointing every year in the playoffs.

What was your first job ever?  What did you like or not like about it?

Ice cream scooper. Rockport was a small tourist town during the summer so there was a lot of ice cream shops. I worked at one called Sundae’s and I probably gave my friends more free ice cream than I was supposed to.

What was your first job in politics?  Did your candidate win?

The first political job that I got paid for was Charlie Baker for Massachusetts governor in 2010. He didn’t win that year, but ran again in 2014 and won. He’s a genuinely likable guy, and he’s currently the most popular governor in the country.

If you could meet any historical icon, of the past or present, who would it be and why?

Tom Brady.  People forget he was drafted 199th in the draft and completely overlooked. He didn’t come from a football pedigree like a Manning, and he really is the greatest underdog story. Now so many people loathe him outside of New England, but true fans of the sport recognize he is the greatest of all time.

What are your favorite three television shows of all time?

I’d have to say Breaking Bad [including Better Call Saul], Sopranos, and Modern Family (I can watch episodes of this any time, and it always seems to be on tv). 

What is your most memorable travel experience?

I’d probably have to say my birthright trip to Israel. Getting to see the country and travel with 40 other people was a real experience. From holy sites, to Yad Vashem, and Tel Aviv nightlife, it was a very rich trip.

FOIA Focus: Ian Smith, Esq., Investigative Associate, Immigration Reform Law Institute

Q.  What are your current job responsibilities? 

A.  I work at a nonprofit law firm that represents people harmed by the government’s failure to regulate immigration. Besides our general courtroom advocacy work, we also have an active investigative and FOIA program that I’ve been helping to run since I started in 2015. We frequently file FOIA suits when requests are stonewalled or when records are improperly withheld. We work on FOIA with agency insiders, Hill staffers, and immigration-control activists in general.

Q.  About how many requests, appeals, and lawsuits have you worked on at IRLI?

A. Since we started our FOIA practice in 2015, we’ve submitted around 150 requests (mostly federal), each one containing around 5 or 6 request items.  Currently, we have about a dozen appeals pending and around 5 lawsuits, each one regarding 5 to 8 requests.

Q.   What would you say are your most notable FOIA matters at IRLI?   

We uncovered some highly revealing emails from 2013 between ICE agents and their D.C. superiors and between ICE agents themselves, the latter expressing frustration they were being forced to release from detention criminal aliens previously deemed a ‘public safety risk’ due to the GOP-led sequestration. The agents basically call this political theatre performed at the expense of the public’s safety.

Additionally, we obtained more than one thousand pages of DHS Secretary’s calendar records and found, among other things, that he met routinely provided access to open-borders groups and lobbyists. We also pinpointed the date of a key meeting in which the President’s 2014 executive amnesty program appeared to have been hatched.

Q.  What is the most unusual agency response you have received to a FOIA request?

A. We’re frequently told the government “does not track the data” we’re requesting. It’s a curious response as it’s not an admission that the information isn’t held and maintained; it simply means they don’t actively track or tally it. For this reason, for data requests we always specify that the agency should pull the data regardless.

Q.  What do you like and not like about working on FOIA matters?

 A. Being able to generate original content for and generally enlighten the news-reading public on matters the government doesn’t want them to know about can be very satisfying. But to be honest, the FOIA process is very draining for the most part. There are numerous ways the government ensures that requestors do not receive information to which they’re entitled and keeps certain information out of public view.  Being able to know the policy area closely, how the agencies work, how to appeal effectively, and what precisely to ask for does go very far, but it’s highly frustrating to know those assets and efforts shouldn’t be as necessary as they are. 

Q.   If you could change one thing about the statute, what would it be and why? 

A. Obviously Exemption 5 has to be narrowed if FOIA is to mean anything. It’s being employed more and more amongst the agencies, apparently becoming a ‘go-to’ redaction for yes-men bureaucrats. Throughout the Obama years, a big problem for immigration-control activists has been the administration pushing through open-borders policies via agency directives that go completely against statute. Being able to ascertain the legal rationale for those directives would go a long way in putting top cabinet officials and their attorneys on notice and curbing executive overreach. Mind you, I’m not calling for transparency when it comes premature disclosure of policies under review; only for transparency of pre-decisional documents with regards to implemented decisions. A time limit on the use of Exemption 5 might be a less complicated -- though less satisfactory -- way of achieving this.

Before the latest FOIA amendments, it had been discussed among frequent requestors that a public interest balancing test be employed with regards to Exemption 5. This would prevent agencies from hiding their policy deliberations, for example, when the public benefits of disclosure outweigh the risks of harm. At the very least, such a test would check the agencies blanket use of Exemption 5.

FOIA officers routinely defend themselves to me by saying Congress just won’t appropriate the necessary funds i.e. for more officers, better processing systems, etc. Taking their excuses at face value, I say increase the fees then. Fees could be dramatically ramped up, for instance, for commercial requestors, such as the now-common hedge fund requestors who, of course, can and will pay fees. Also, being more forthcoming with documents and preventing litigation would free up resources and decrease the amount of litigation fees expended by agencies after they lose FOIA fights.

Q.   If the government would release any document(s) you requested, what would you ask for and why?

A. We sued DOJ in an attempt to obtain the legal opinion published by the Office of Legal Counsel regarding Obama’s 2012 Deferred Action for Childhood Arrivals amnesty announcement. Through this process, we found out that the opinion was “oral” (according to them) and never actually formally drafted. Since then, I’ve raised this curious issue in op-eds: why did DOJ subsequently opt for a more transparent and formal drafting process two years later for the identical Deferred Action for Parents of Americans program? So there’s that, and illegal alien-crime figures as well. On behalf of a client of ours, Don Rosenberg, whose son was killed by an illegal alien, we’re trying to retrieve the data needed to ascertain these figures. As Don’s mentioned in op-eds, “After all, the Justice Department can tell me how many pick-pocketing crimes there were last year but not how many people were killed by illegal aliens.”  

Q.  Where were you born/grow up?

A.  I was born just outside Seattle, grew up in Vancouver, British Columbia, and lived in Beijing, Hong Kong, and Sydney, Australia for many years.  

Q.  Where have you attended school and what did you study?  

A. I studied English Literature at the University of British Columbia and law at the University of New South Wales in Sydney.

Q.  What do you like to do in your spare time? 

A. I write for our staff blog when I’m free -- always about immigration law and policy. I publish the posts at The Hill, National Review, Daily Caller, and several other outlets. I also read a lot.

Q.  If you could meet any historical icon, of the past or present, who would it be and why?

A. I don’t think I need to meet with anyone in particular, but there are certainly people who I wish were still around. I grew up reading George Orwell and he’s certainly been an important influence. His articulation on the specialness of the English alone should guarantee his place in the canon, although it really was his ability to persevere through the intellectual intimidations of his time that impresses me most. It was impossible for him to not speak his mind and point out the hypocrites, like the apologists for Stalin among the British intelligentsia. Then, of course, there are the ideas on thought-control he expressed in 1984, and the use of distortive, euphemistic language, etc. I certainly would have liked to hear what he’d have to say today, especially on the highly exploitative language from the open-borders movement.

Q.  What are some of your favorite books and television shows?

A. Favorite books on the topic of immigration would have to include How Many Is Too Many? by Phil Cafaro. It covers most of the policy arguments for controlling and reducing our intake numbers and in an incredibly thoughtful way. The more cloistered and naïve elements in our society today feel immigration in the West must operate like a global welfare program i.e. the West is rich, so adding to its population increases global wealth, etc. It’s a surprisingly difficult argument to take on, because it’s so impossibly naïve, however, Cafaro refutes it handedly. I haven’t watched TV since the nineties.  

[9/1/18:  Please see the following update concerning our interview with Mr. Smith]

FOIA Focus: James Valvo, Counsel and Senior Policy Advisor, Cause of Action Institute

Q.  You were recently selected to serve on the National Archives and Record Administration’s FOIA Advisory Committee.  What do you hope to accomplish on the Committee?

A.  The FOIA Advisory Committee is an opportunity for the requester community and agency staff to connect with each other and learn about the struggles each has when it comes to working under the statute.  Our goal is that by working together and sharing information we can craft solutions that will benefit both sides of the FOIA equation.  There are several elephants in the room, including the ever-increasing volume of requests, finite agency budgets, and agency failure to comply with statutory deadlines.

Personally, I’d like to find ways to both improve the administration of FOIA while introducing mechanisms to hold agencies accountable for decisions they make that are unsupported by the statute or caselaw.

Q.  If you could change anything about the FOIA, what would it be and why?

I’d like to get more information from the agency in the final determination letter.  As a requester, it is often difficult to know whether the agency’s decisions on fees, sufficiency of the search, or application of redactions is proper.  That leaves the requester in the untenable position of appealing in the hopes of winning or living with an unclear final determination. 

For example, agencies sometimes deny a request for a fee waiver or fee classification without providing information on how the requester has come up short.  Similarly, a description of the search, including names of records custodians and offices searched would allow requesters to better understand how the agency went about looking for the requested records.

Q.  What is the most unusual FOIA response that you have ever received? 

A.  The most unusual responses are usually errors by the FOIA officers, which are quickly reversed with a phone call or administrative appeal.  For example, I remember learning about a response were the requester was told that an entire class of records (Inspector General reports) were categorically not subject to FOIA.  A short email to the agency head quickly reversed this improper position.

Q.  What suggestions would you give to new FOIA requesters?

A.  Describe the records you’re seeking as specifically as possible.  This may seem like obvious advice but I often come across very broad requests that don’t really explain precisely what they’re looking for.  Use plain English and give as much detail as possible; don’t try to hide the ball.  Try to put yourself in the position of the FOIA officer receiving the request.  How would you go about beginning a search for the records you’re seeking?  And for the lawyers out there, you’re not writing a discovery request.

Q.  What is your view on the government’s “release to one, release to all” project?

Release to one, release to all is an interesting policy agencies may soon take to post nearly all of their released FOIA productions on their websites.  Agencies processed more than 700,000 FOIA productions last year.  If in the future most of their productions go online we will see a dramatic increase the amount of information available to the public.  That is a good thing.  

But of course, the devil is in the details.  It will be important that agencies post the information in a manner that is easily searchable and able to discovered by individuals that may be seeking that information in the future.  If the agencies only post a series of PDF files with little information about their contents, this policy may do little good.  However, if agencies take the time to include tags or other descriptions of the types of information in the files, this policy may make a dent in the volume of future FOIA requests and increase the public's understanding about government.   

I also believe that the Department of Justice’s Office of Information Policy is taking the right approach by acknowledging that different agencies have different capacities and restraints.  Allowing each agency to steadily make progress toward full adoption of release to one, release to all is the right approach. 

Where did you go to school and what did you study?  

I went to American University in Washington, DC for both undergrad and law school.  My degrees are in political science and law.

What are your favorite sports teams?

I grew up in Michigan so I'm a fan of the Tigers, Lions, Red Wings, and University of Michigan.  Go Blue!

FOIA Focus: William Holzerland, Esq., Food & Drug Administration

How did you get started in the FOIA field?

After watching my fellow St. Bonaventure University alumnus and New York City Fire Chaplin Fr. Mychal Judge become World Trade Center casualty number 1 on September 11, 2001, I determined I absolutely had to join what eventually became the U.S. Department of Homeland Security (DHS), in some capacity or another, to serve our country.  I was fortunate to be hired to serve as a FOIA Assistant at the Transportation Security Administration (TSA), which is a component of DHS.  I thought that post meshed well with my education in journalism, and I aimed to become a voice for government transparency on the inside. 

What other FOIA positions have you held prior to joining the FDA?

In addition to my first post at TSA, I’ve served in FOIA positions at the DHS Office of Inspector General, as Associate Director for Disclosure Policy and FOIA Program Development in the DHS Privacy Office, and as Senior FOIA Analyst and FOIA Public Liaison at the Consumer Financial Protection Bureau (CFPB).

What are your current job duties?

I serve as Director for the Division of Information Disclosure at the FDA’s Center for Devices and Radiological Health (CDRH). I manage a group of talented and well-educated professionals who administer FOIA, the Federal Records Act, the Privacy Act of 1974, and other privacy laws, at our Center.

What is the most common FOIA request you receive at the FDA?

The most common FOIA request at my Center is from commercial requesters seeking records pertaining to third parties’ applications to market medical devices.

What is the most unusual FOIA request you have ever seen at FDA or elsewhere?

There are many interesting ones that could be listed here, but one of my favorites was a one-line piece of correspondence during the early days at DHS in which the requester sought something along the lines of, “access to and copies of a list of everything we’re not allowed to know.”  It was rather unmanageable from a processing side, perhaps, but clever in its simplicity, and was resolved with a phone call between me and the requester.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage? 

A number of the FOIA matters I worked on at DHS received significant media coverage.  That level of scrutiny made sense, as our Department was new and directly impacts the lives of our fellow Americans on a daily basis. We processed many requests related to disasters, such as 9/11 or Hurricane Katrina, which were broadly covered.

What do you like and not like about working on FOIA matters?

I have enjoyed pushing my agencies for more transparency, and my primary focus remains on helping people at the core.  I enjoy interacting directly with FOIA requesters. I try to be a “good government”-focused person and take a pragmatic approach to problem-solving. Those parts are all fun. However, like many of my customers, I also find needless bureaucratic delays incredibly frustrating.

You were recently selected to serve on the National Archives and Record Administration’s FOIA Advisory Committee.  What do you hope to accomplish on the Committee?

Being appointed by the Archivist of the United States to serve on the FOIA Advisory Committee is a huge honor.  I’m excited to collaborate with my colleagues in civil society and on the government side to find solutions to some of the problems we routinely encounter.  Accordingly, I look forward to our Committee making practical recommendations that can be quickly implemented by the government to help the process work better for FOIA requesters. 

Where were you born/grow up?  Is there an off-the beaten path that you would recommend that tourists visit?

I am an extremely proud native of Buffalo, N.Y.  While our winter snowfall is much-maligned, I miss it, and summers in Western New York are gorgeous.  I highly recommend visiting my hometown.  There are plenty of spots to visit, such as Niagara Falls, which is close by, excellent local fare, such as our famous wings, and plenty more that you’ll find at the many craft breweries that are new to the city.  Downtown Buffalo has undergone a fantastic renaissance in recent years, and I’d recommend checking out the Canal side area, surrounding the remnants of the Erie Canal, where you’ll find food, music, ice cream, and beautiful views of Lake Erie. There’s stunning architecture, including several Frank Lloyd Wright-designed homes, Frederick Law Olmsted’s park systems, and too much art and history to list.  If it sounds like I am nuts about the Queen City, I am, and I think everyone should visit it!

Where did you go to school and what did you study?  

I attended St. Bonaventure University, where I earned a dual Bachelor of Arts in Journalism/Mass Communications and History.  I went to law school in the evening and on weekends at the University of Baltimore School of Law while serving in the government, and am admitted to practice law in Maryland.

What was your first job ever?  What did you like or not like about it?

My first job was delivering the Buffalo News to homes, beginning when I was about 11 years old.  I loved the newsprint on my hands, and enjoyed being able to sneak a peek at the box scores from the prior night’s baseball games while I walked my route. Walking to deliver the papers through mountains of snow in the winter was brutal, however.

What do you like to do in your spare time?

I am an avid sports fan, particularly of my beloved Buffalo Bills and Buffalo Sabres, love reading history books, and enjoy traveling as much as possible.

If you could meet any historical icon, of the past or present, who would it be and why?

I’m mostly Irish and have always been fascinated with our history.  I’d be interested in meeting figures involved with the independence movement, such as Michael Collins or Éamon de Valera, given the opportunity to do so.

What is your favorite television show?    Movie? 

I don’t watch much television, but House of Cards is an excellent show.  The Godfather is by far my favorite flick.

What are you really bad at that you would love to be better at?

Like many of my fellow Irishmen, I’ll sing at the drop of a hat, but when I do so, it tends to be an unfortunate experience for those within earshot.