Commentary: Special Counsel records

For future requesters who might be interested in the records generated by Special Counsel Robert Mueller, who was appointed by DOJ yesterday to oversee an investigation into Russian contacts with the Trump campaign, the following FOIA case involving former Special Counsel Patrick Fitzgerald's investigation into the Valerie Plame affair might be instructive:  Citizens for Ethics & Responsibility in Wash. v. DOJ, 658 F. Supp.2d 217 (D.D.C. 2009).    

In sum, the court held that DOJ properly withheld certain records pursuant to Exemptions 1, 3, 5 (deliberative process privilege), 6, and 7(C), but that it failed to demonstrate the applicability of Exemption 7(A) to "specific ongoing or reasonably anticipated law enforcement proceedings."  Requesters seeking Mueller's investigatory records will likely have to wait years, like CREW, until the government's investigation and any anticipated law enforcement proceedings moot Exemption 7(A).   

Commentary: DOJ's summary of FY 2016 annual reports

Yesterday DOJ's Office of Information Policy released its summary of agencies' fiscal year 2016 annual FOIA reports.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- share their observations.

A.    A good deal of this data was made available by DOJ six weeks ago, which I am happy to revisit, but I'll start by pointing out several new items that initially caught my eye.  The bad news first:  the average time to process "simple" requests skyrocketed by nearly 22 percent (p. 12).  And a pet peeve of mine: the government continues to ignore consultations that agencies have with the White House (p. 14).  Some good news: the average time to process administrative appeals decreased by 30 percent (p. 17).  

R.    The data on exemptions are interesting (pp. 7-8).  Exemptions 7(C) and 7(C), taken together, accounted for over half of all instances of redaction (27.87% and 23.64%, respectively), and Exemption 6 was the single most cited exemption (29.90%).  Use of Exemption 5 (8.53%) only slightly increased from FY 2015, but that's still way down from FY 2013 and FY 2014 levels.  Of course, I'm not sure whether any of this really tells us anything about how agencies are actually processing responsive records though.  The use of Exemption 6, for example, to withhold information such as personal phone numbers or portions of email addresses likely skews things a bit.  Nearly every agency record has some uncontroversial (b)(6) material that is withheld.  If we were just looking at the redaction of the sort of substantive information most requesters are trying to get, I expect the use of Exemption 5 would skyrocket.  I'd also be interested to know, with respect to Exemption 5, which privileges have been cited and how frequently.

Some other thoughts: I'm amazed that NARA is processing all of the "ten oldest pending requests," which date from between 1993 and 1998 (p. 11).  Also, I agree with Allan about the deficiency of the discussion of consultations (pp. 14-15).  There's some ambiguity, I think, in what the reported numbers represent.  It'd be better for agencies to report how many consultation requests have been sent out and returned, and to whom they were sent, rather than account for how many were received and "processed."

K.    Disappointed that litigation-related costs as a percentage of FOIA has remained constant since FY 2009 at about 7% (p. 19). The "presumption of openness" and the increase of proactive disclosures noted on p.19-20 don't seem to be having an effect on litigation, although 85% of the proactive disclosures are from NARA. 

If agencies received 6,159 consultations in FY 2016 (p. 14), how many consultation requests did the White House receive and how many of those overlap with the consultations noted in this report? Thoughts? 

A.   The existence of OGIS also apparently has not driven down the percentage of litigation costs either, Kevin, though it is fairly powerless to prevent lawsuits based on the agency's failure to timely process a request.  Unrelated,  I want to briefly raise the statistic touted by DOJ that the government has a 91 percent "release rate" (pp. 5-6, 19).  This does not mean that the government released records in response to 91 percent of all requests filed.  Rather, it means that when the government actually processed records in response to a request (approximately 63 percent), the government released at least a portion of at least one page.   So it is not the most meaningful measurement of the government's transparency.

R.    That's a good point about the 91% "release rate," Allan.  And I can imagine that a fair number of requests in the "Released in Part" category on page 6 resulted in production of records that had most meaningful content withheld.  On a separate note, I was disappointed to see the FOIA backlog increase by nearly 12% (pp. 9-10).  I suppose between the loss of momentum from the Obama Administration's efforts to decrease the backlog, on the one hand, and the deluge of requests pouring in about Clinton and Trump, on the other--not to mention limited agency resources--an increase was inevitable.  I can't say I'm optimistic for the coming year.

K.    The 91% "release rate" has long been criticized by the FOIA community, including by the National Security Archive in its newsletter today:

The figure is disingenuous because, as Archive Director Tom Blanton told the Senate Judiciary Committee in 2015, “The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming ‘no records,’ ‘fee-related reasons,’ and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.”

I'll end with a wish list for the FY 2017 summary:

1. Stop using the disingenuous "release rate"
2. Start including data on White House consultations 
3. Include more specificity on Exemption 5

Commentary: FOIA Search Survey

Last week, the National Security Archive (NSA) and the Project on Government Oversight (POGO) published the results and analysis of their survey of agency FOIA personnel and requesters about the search process.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.

A.  A useful survey and I largely agree with NSA and POGO's conclusions.  If I were to quibble about anything, it would be with the following paragraph:

Unfortunately, statistics show extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.”  But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches.  Administrative appeals often result in a second, more thorough search that finds the documents requested.

Based on my experience as both agency counsel and a requester, I do not believe that the percentage of no-record responses is "extremely large."  And I would say that "some," not "many" of those responses are due to inadequate searches. Similarly, I would say that appeals "sometimes," not "often," result in the discovery of additional requested records.  In the absence of hard facts, of course, we'll have to agree to disagree about which adjectives are more appropriate.    

R.  One of the shortcomings of the survey is its small sample size: 57 responses, of which only 30 were from processors.  Considering the bulk of the analysis centers on what agencies are doing, I'd have liked to see more input from the government.  Otherwise, I agree that the conclusions are generally good.  

The lack of government-wide guidance on how, precisely, an agency should conduct a search is one source of a lot of the identified problems.  But that's probably unavoidable so long as agencies have varied infrastructures.  Consider the IRS.  In my experience, the IRS tries to avoid searching e-mail, for example, because it doesn't allow employees to self-search (at least, that's what IRS FOIA officers have told me).  The alternative approach requires a lot of time and labor investment.  The IRS also complains that it lacks modern hardware and software.  Such technological limitations have a real impact on how the FOIA is implemented, especially in an increasingly high-tech world.

As for the "no records" issue, agencies regularly tell me that they don't have any responsive records.  I'm sure that many of these responses reflect a good faith search.  A few of them, however, may be based on a reluctance to deal with complex or politically sensitive requests.  That many agencies rely on components or employees to actually carry out a search only facilitates such poor efforts in a limited number of cases.  I've also found it common for an agency to tell me that it has a large number of potentially responsive records, but then produce hardly anything once the review process is done.  Maybe the agency is erring on the side of being over-inclusive during the search process, but that just raises a different type of inefficiency.  Finally, on a related note, I imagine a small number of requests are rejected as invalid or imperfect because an agency simply considers it difficult, as a practical matter, to conduct a search.  I realize, though, that there may be a fine line between a complex request that requires a difficult search and an "unreasonably burdensome" request.

Here's one recommendation that wasn't in the survey: requesters and agencies should do a better job at talking to one another.  Communication allows everybody to clarify the scope of the request, to identify expectations, and to understand an agency's limitations.

K.  Considering the lack of uniform guidance on searches, a 16 percent "no responsive records" doesn't seem high to me either. That said, I think when you include that 16 percent with those instances where an agency gives you a couple of emails or documents at you just to close the request, that's where the "extremely large" would be found.

If you look at the survey responses to FOIA software, the lack of technology use for conducting searches is pretty stunning with 25 percent not using any software and 7 percent "not sure."  I'm not sure which technology is best (the survey lists the software used, like FOIAOnline), but I'd wager that solving the technological limitations within agencies would be the best way to improve FOIA for processors and requesters. 

Commentary on Sunshine Week

With Sunshine Week ending on March 18, the staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- share observations on the week's events. 

A.  The highlight for me was the release of Max Galka's analysis of FOIA users, which seemed to be the most retweeted FOIA item of the week.  A shame that the House hearing on transparency was postponed, but the Senate Judiciary Committee stepped up by issuing information requests to OIP, OGIS, and OMB.  I had expected OIP to issue its summary of annual FOIA reports, as it usually does during Sunshine Week, but at least the 2016 data was available on FOIA.gov.  Speaking of FOIA data, next year I think we might see the total number of requests approach or topple 900,000.  Bets anyone?

K.  There were 788,769 requests in FY 2016 according to FOIA.gov.  With the increase in requests from the likes of the ACLU, environmental groups, and MuckRock users, I'd take the over on 900,000.  In 2017, I'd also take the over on the AP report that the Obama administration spent $36.2 on legal costs for FOIA cases in FY 2016.  

R.  I agree with Kevin.  The Obama Administration saw an uptick in public interest in the FOIA, undoubtedly due in part to its poor record on transparency, but I think the Trump Administration will witness an even more significant growth of requester activity and bolder efforts to frustrate disclosure at the agencies.  I had hoped that DOJ-OIP would provide the public with an update of the "release to one, release to all" guidance.  Maybe it will be included in the forthcoming agency "toolkit"?  

Senate Judiciary, as we reported a few days ago, is also interested in the status of that guidance.  I'm hoping this means that further FOIA reform is a possibility in the new Congress.  There's certainly more that could be done to follow-up on last year's FOIA Improvement Act.

A.  Congress typically does not take up FOIA legislation in successive years, but since House Oversight was at least interested enough to schedule a hearing, you might very well get your wish, Ryan.  In the meantime, the majority of agencies haven't even updated their FOIA regulations in compliance with the FOIA Improvement Act of 2016, as the National Security Archive reported earlier last week.  And we're still waiting for DOJ to repeal and replace Attorney General Holder's 2009 FOIA memo.   

K.  I thought MuckRock's FOIA March Madness 2017 was a pretty interesting take on the usual agency response time FOIA project.  We'll have to keep an eye out on how that turns out.  The bad news from last week was a District Court decision that said the Office of Science and Technology Policy was not required to search the private email account of their former policy director despite the presence of work-related emails.  I'm sure Ryan has plenty to say on that.

R.  Indeed, Kevin.  I've published a blog piece on the recent developments in the district court.  Judge Kessler's consideration of CEI's metadata argument is simply wrong.  Certain types of metadata can form an integral part of an electronic record and, accordingly, should be disclosed under the FOIA.  If former Director Holdren's work-related email records contained integral metadata that didn't transfer over to the duplicate copies on OSTP's servers, then I don't think the agency should be able to avoid searching that Woods Hole account.  The district court's ruling really takes some of the bite out of the D.C. Circuit's important decision.

Commentary on draft "Release To One, Release To All" policy (Part II)

This post is continuation of a discussion among the FOIA Advisor staff about the Department of Justice's proposal to electronically publish records that have been processed in response to a single FOIA request -- a policy that would exceed the statute's requirements.   

A.  Ryan, your concerns about the "good cause" exception are not entirely unwarranted, though my general sense is that we should take heed of the expression "never look a gift horse in the mouth."  And I do not object to DOJ's court-endorsed reliance upon a "mosaic" approach to harm.  On another topic, I'll be interested to see how diligently DOJ enforces whatever policy is adopted -- that is, assuming the incoming Administration lets it go forward.  Before the passage of the FOIA Improvement Act of 2016, at least one agency -- namely the Consumer Financial Protection Bureau -- outright refused to abide by DOJ's "rule of three."  Indeed, CFPB failed to create a FOIA electronic reading room until 2016, five years after it formally began operations.  Sad!

K.  I think Allan's point might be the most important one. Our previous discussion about the aspects of this may just be putting the cart before the horse. The draft guidance says this on implementation: "1) the agency commits to fully posting at least some portion of their eligible FOIA-processed records by March 31, 2017, and 2) the agency commits to steady increases over time in the numbers of the records posted."  

It's very vague and doesn't include any measurable statistics to follow up on progress over time. The date for committing to following the policy at least in part is coming fast. For some of the busier agencies dealing with FOIA, this is a huge technological lift if they don't have a system already in place. What are the odds we see much progress by April 1, 2017?

R.  Good points.  I agree about the vagueness and lack of metrics, Kevin.  As Allan intimated, I think it'll come down to how the new Administration approaches the FOIA.  There hasn't been any shortage of speculation about President-elect Trump's position on transparency issues.  Perhaps he and his Attorney General will issue memoranda in the coming weeks to set the tone for the next four years, just like their immediate predecessors.  I wouldn't be surprised if any final "release to all" guidance were delayed.  And then there's still the enforcement issue that Allan also mentioned.  Unless this proposed presumption is codified (which is very unlikely), DOJ is only going to be as successful as it is persuasive.  DOJ's pilot included components at some of the major agencies--EPA, DHS, DOD, NARA, etc.--so hopefully they and others have been working on the necessary infrastructure in the background and won't delay working towards 100% implementation, assuming the White House doesn't slow things down.

Commentary on draft "Release to One, Release to All" policy (Part I)

The U.S. Department of Justice solicited feedback last month on a draft release policy concerning FOIA-processed documents.  This followed a six-month pilot program in 2015 and an assessment by the Chief FOIA Officers Council in the latter part of 2016.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.  

A.    I was able to submit a public comment just before the deadline, so I'll do my best Bill Belichick impression by deferring and kicking it off to you, Kevin and Ryan.  

K.    I had originally thought that the records should immediately be released to the public, but I think I've come around to some sort of waiting period. The main issue with the waiting period, as Allan discusses in his comment, will be the timing. I think whatever is easiest to implement at a minimum of five business days is more than sufficient. Should be interesting to see what sort of method of posting each agency goes with and how much information is provided about the requested records. 

R.    I tend to believe that agencies should try to simultaneously release records to requesters and the public.  Some already do this with FOIAonline.  I can appreciate why a journalist would want a period of exclusive use to avoid another person stealing a potential story, but in the end, I think that concern is overstated.  Assuming agencies can post productions for immediate public access, original requesters will still have the advantage.  They will be in the best position to digest and use the records, either in light of their expertise or the inevitable delay between notice of a production and someone else finding the records online.  Unless an agency has a powerful search tool in its reading room, I doubt it'd be so easy to troll for someone else's "hot documents."  I also don't think the incentive to file requests will diminish.  If anything, releasing to all immediately may spur quick dissemination of information when it is newsworthy or in the public interest.

I'm curious how the policy will intersect with administrative appeals.  Not just anyone will be able to file an appeal based on records that have been "released to all."  That would require a change in the statute.  But if an original requester prevails in challenging some redactions, for example, will an agency be required to update its library of released records?  Or will the records in re-released form only be available to the successful appellant-requester?  I don't believe DOJ has addressed this issue.

A.    Oh, good, we now have something to quibble about.  Congress considered this issue twenty years ago and it declined to extend the electronic posting requirement beyond "frequently requested" records.  That seems sensible because, based on my government experience, a significant percentage of FOIA-processed records are likely to be of interest to very few people other than the requester.  So why expend agency resources to post those records?  To merely reduce the possibility of receiving any future request for the same material?  That is thin gruel to support a simultaneous release policy that threatens to deprive a requester from reviewing FOIA-processed records before "free-riding" competitors.   As I read the government's proposal, nothing would prevent an agency from releasing records to a requester by first class mail and posting those records online on the same day without notice to the requester.  In that scenario, the public conceivably would be able to access requested records before the requester, which defies fairness.  And I would not underestimate the requester community's ability to construct web crawlers that can locate newly posted documents in agency reading rooms.       

I should clarify that I believe all requesters, not only journalists, should be entitled to at least some period of guaranteed exclusive access, even if for just one day.  Why completely ignore the efforts of non-journalists -- often spanning years and at significant monetary expense -- to obtain records that the government has declined to proactively release?  If you value entrepreneurship, "Option 1" of DOJ's draft policy should be a no-go as currently written.  

K.    This goes back to what I said about the technology behind how agencies will be posting the records. If, for example, you can subscribe to an RSS feed like we have here at FOIA Advisor (subscribe for daily email updates at this link) or at MuckRock (feeds to submitted and completed FOIA requests) and have new items sent to your inbox, then it might make more sense to have a built-in waiting period before posting. If the documents are going to be posted in a fashion similar to "frequently requested" records or FOIAonline, then a built-in waiting period won't be as important in my view. FOIAonline has a pretty robust search function, but it would take some work to identify new records on a regular basis. 

R.    While I acknowledge the history of the proactive disclosure requirement, I'd also point out that the FOIA Improvement Act of 2016 has clarified that requirement and codified DOJ's long-standing guidance, namely, that agencies must disclose records that have been requested at least three times or that are expected to become the subject of frequent requests.  I don't think its a huge step from this legal requirement to DOJ's "release to all" presumption.  Unless we entirely reject the draft policy -- which is an approach that Allan's arguments seem to support -- agencies are going to have to bear a new burden in posting most everything they disclose.  It's just a matter of timing.  Option 1 possibly avoids a two-step process that could consume a lot of agency resources.  That being said, I'm not wedded to simultaneous release.  Some of the technological aspects that Kevin highlights could convince me otherwise.  Maybe it'd be easy for agencies to design a delayed disclosure mechanism.  Maybe they will use something like an RSS feed.  I'll admit that Allan has imagined an excellent hypothetical where an agency mails productions to certain requesters while posting them online for the rest of the world to access.  It'd be a great way for agencies to politicize the FOIA and punish journalists or requesters who oppose their policy agendas.

Now, to move away from the timing issue . . .  Am I the only one troubled by this "good cause" exception?  I'm okay with excepting records that cannot feasibly be posted online.  But I'm concerned with the idea that whole categories of records aren't appropriate for "release to all."  The FOIA already allows agencies to withhold materials that pose a risk to national security (Exemption 1), confidential financial information (Exemption 4), personal privacy interests (Exemption 6), law enforcement interests (Exemption 7), or most anything else that could be privileged (Exemption 5). There should be no difference in determining whether information can be disclosed to an individual requester as opposed to the world.  As a nice compromise, I think DOJ should just create a single, straight-forward, and government-wide exception for any record that (1) illustrates or depicts graphic violence, or (2) that appeals to prurient interests, such that we would not want a child to access it.  Everything else should be fair game.

To be continued on Friday, Jan. 13, 2017