FOIA News: Some agencies fall behind on FOIA.gov interoperability requirements

Some agencies fall behind on FOIA.gov interoperability requirements

By Rebecca Heilweil, FedScoop, Sept. 15, 2023

A number of federal agencies, including the Secret Service and U.S. Citizenship and Immigration Services, are still working to become interoperable with FOIA.gov —  a hiccup in the slow-going effort to standardize the public records request process at the federal level and create a national FOIA system. 

Many agencies have updated their public records systems in order to ensure their systems work with FOIA.gov, a requirement established in a 2019 White House memo, according to a recent FedScoop review of 2023 Chief FOIA Officer reports and subsequent inquiries sent to agencies. But others are still running into technical and logistical issues.

Read more here.

FOIA News: Audit finds IRS errors in FOIA processing

IRS Could Improve FOIA-Requested Document Releases, TIGTA Says

By Caleb Harshberger, Bloomberg Law, Sept. 14, 2023

The IRS should improve its processes to better tackle Freedom of Information Act requests and when it should redact or release information, the Treasury Inspector General for Tax Administration said in a report released Thursday.

TIGTA found IRS staff improperly redacted or released information subject to a FOIA request in 22% of cases out of a statistical sample of responses—a 6% increase in the error rate from last year’s analysis.

The watchdog recommended the IRS update the Internal Revenue Manual “to clarify when third-party information should be redacted or released.”

Read more here (accessible with subscription).

FOIA News: EPA finalizes amendments to FOIA regulations

On September 14, 2023, the Environmental Protection Agency published a final rule in the Federal Register that updates its FOIA regulations following a notice-and-comment period. The rule is effective on November 13, 2023. Of note, the EPA controversially added “environmental justice” as a basis to expedite requests and will now require taxpayers to subsidize the first $250 in fees for every FOIA requester.

FOIA News: Agencies should post more legal material online, reports ACUS advisers

Affirmatively Disclosing Agency Legal Materials

By Bernard W. Bell et al., Regulatory Review, Sept. 11, 2023

Administrative agencies’ law-generating powers have long been recognized, as has the importance of making agency-generated law available to the public. In 1971, the Administrative Conference of the United States (ACUS) recommended that “agency policies which affect the public should be articulated and made known to the public to the greatest extent feasible.” Over the years, ACUS has adopted numerous recommendations to that end.

* * *

ACUS commissioned the five of us as a consultant team to craft potential statutory revisions that would ensure greater online accessibility of agency legal materials. As part of our work, we solicited formal input through a series of meetings with a 60-member group of ACUS members and affiliates, including representatives from 50 federal agencies. We also conducted our own research, reviewed more than 30 written comments submitted to us, and deliberated at length among ourselves in more than 20 team meetings held over an 11-month period. The resulting 157-page report thus reflects a well-deliberated consensus that is based on extensive analysis and broad input.

One simple principle animates our entire report: All legal material that agencies must disclose upon request by a member of the public should be affirmatively made available on agency websites.

Read more here.

FOIA News: FOIA on the Right

Republicans Playing the Oppo Game

FOIAengine Looks at Opposition Research on the Right

By John A. Jenkins, Law Street Media, Sept. 7, 2023

In the shadowy world of political opposition research, sometimes the game looks like Spy vs. Spy.  That’s particularly true right now, in the run-up to next year’s presidential election.  As more than a dozen Republican hopefuls jockey for position, a raft of newly created research groups with ties to the former Trump Administration have jumped into the fray, blanketing the federal government with thousands of FOIA requests. 

Measured by the sheer number of Freedom of Information Act requests and resultant lawsuits, the new research groups are subsuming work once the purview of the well-established Republican oppo machine, America Rising. 

Read more here.

FOIA News: FCC finds a replacement for FOIAonline

FCC Transitioning to New FOIA Solution on October 1

Benton Broadband, Sept. 1, 2023

The Federal Communications Commission currently relies simultaneously on two online case management solutions: FOIA.gov available at https://www.foia.gov and FOIAonline.gov, available at https://foiaonline.gov/foiaonline/action/public/home. With the planned retirement of FOIAonline.gov by its host agency, the FCC will transition from FOIAonline to a new online case management solution beginning October 1, 2023. "Although there will be a new look, we expect the transition to be seamless," said every government agency ever just before a complete meltdown. For further information, please contact Stephanie Kost, FOIA Public Liaison, at FOIA-Public-Liaison@fcc.gov or 202-418-0440.

Original notice here.

FOIA News: Advisers used Greek letters to avoid Michigan FOIAs

Democrat governor's consultant used email coded with Greek to thwart public records searches: lawsuit

Email to top Whitmer adviser expressed 'some major red flags'

 By Kyle Morris, Fox News, Aug. 31, 2023

A coded email sent by a consultant to a policy adviser for Democrat Michigan Gov. Gretchen Whitmer was used to "conceal" certain information related to the state's handling of a local water crisis from becoming public knowledge, according to a lawsuit filed by residents of Benton Harbor.

Andrew Leavitt, who once served as a consultant to Michigan’s energy department, used letters from the Greek alphabet to send the September 2021 email to Kara Cook, Whitmer's senior energy adviser, the class action lawsuit alleges.

Read more here.

FOIA News: FOIA logs reveal Democratic opposition research strategies

The DNC Goes Fishing – What Will it Catch?

By John A Jenkins, Law Street Media, Aug. 30, 2023

FOIAengine Examines Political Opposition Research

A few weeks ago, Politico’s Florida Playbook ran a story revealing what “hundreds of people, groups, and journalists” in the state were asking for:  “texts, emails, calendars, letters, and receipts” to or from Florida’s governor, presidential candidate Ron DeSantis. 

In Politico’s telling, many of the requesters were affiliated with the Democratic Party,  making demands under the state’s open-records law to get “damning material against political enemies.”  And, in DeSantis’ case, Florida’s public records certainly marked the best starting point to look for muck.  The list that Politico received of requesters targeting DeSantis in his home state was 222 pages long.

“Unsurprisingly, mostly Democratic-aligned groups asked for dirt on DeSantis and his inner circle,” Politico wrote.  “Oddly, no one tied to Trump – or other 2024 candidates – asked for such records, though it’s possible that GOP campaigns used an untraceable proxy to avoid angering a future Republican president.”

Why didn’t the Trump campaign file such requests?  Steven Cheung, a Trump campaign spokesperson, bluntly told Politico:  “We have information that no opposition researcher can ever find.”

Read more here.

FOIA News: USTR finalizes FOIA revision

On July 25, 2023, the U.S. Trade Representative issued an interim amendment to its expedited FOIA processing regulations. Today, the agency adopted that amendment as final after having received no public comments within the 30-day comment period.

FOIA News: FAA grounds FOIA request for VIP flight data

FAA accused of stonewalling demand for Buttigieg private flight data

By Josh Christenson, NY Post, Aug. 30, 2023  

The Department of Transportation is refusing to hand over private flight records for Secretary Pete Buttigieg, according to a conservative watchdog group suing for the files.

Americans for Public Trust (APT) said Wednesday that the Federal Aviation Administration has repeatedly missed deadlines to share Buttigieg’s flight logs and passenger records since the group first sought them this past November.

Fox News first reported the FAA’s foot-dragging.

APT also sent follow-up requests in January for the names of members of Congress and the White House or other Biden administration officials who flew on FAA planes and for a list of the agency’s jets, The Post has confirmed.

Read more here.