FOIA News: Message to our email subscribers

Beginning this week, we will be switching our email subscription service from Google—which is retiring its service in July 2021—to Mailchimp. Email will continue be delivered every day after the blog is updated, but at a later time: 10:00 AM instead of 6:00 AM.

FOIA News: EPA Administrator Michael Regan Sends All Staff E-mail on FOIA Operations

.@EPAMichaelRegan in a memo to @EPA staff pushes #FOIA to build public trust, vows to reduce the backlog of requests

The agency reported 1,783 backlogged requests in fiscal 2020

Here's the email

More here 🔒https://t.co/SSibopSXuB pic.twitter.com/LvBFQY5D5D

— Kevin Bogardus (@KevinBogardus) May 20, 2021

FOIA News: Top Interior lawyer nominee quizzed over public records law

Top Interior lawyer nominee quizzed over public records law

By Zack Budryk, The Hill, May 18, 2021

Acting Solicitor of the Department of the Interior Robert Anderson was pressed by members of both parties Tuesday over how he would handle public records requests if confirmed to the position on a permanent basis.

Anderson faced questions from multiple members of the Senate Energy Committee over Freedom of Information Act (FOIA) requests, with lawmakers repeatedly calling for transparency from the administration.

Read more here.

FOIA News: Lawmakers ask DOJ not to appeal court's decision on OLC memo

Senate Democrats urge Garland not to fight court order to release Trump obstruction memo

By Harper Neidig, The Hill, May 14, 2021

A group of Senate Democrats are urging Attorney General Merrick Garland not to fight a court order demanding the release of a 2019 Justice Department (DOJ) memo that essentially cleared former President Trump of criminal wrongdoing following the special counsel's investigation. 

Nine Democrats on the Senate Judiciary Committee sent a letter to Garland on Friday, asking the DOJ not to appeal the order from earlier this month, in which District Court Judge Amy Berman Jackson ordered the department to release the Office of Legal Counsel (OLC) memo and accused former Attorney General William Barr and DOJ lawyers of deception. 

Read more here.

FOIA News: Further commentary on Exemption 5 SCOTUS decision

The Deliberative Process Privilege: Impediment to Freedom of Information?

This article provides a discussion of Justice Amy Coney Barrett’s recently-authored opinion in 'Fish and Wildlife Service v. Sierra Club', in which the Supreme Court has construed a key privilege in FOIA jurisprudence in such a fashion as to likely put a serious damper on the ability of requesting parties to obtain record material.

By Mitchell Cohen, NY Law J., May 14, 2021

There has been a perennial tug-of-war between federal Executive Branch departments and those individuals and advocacy organizations seeking to pry records loose from them. This long-running dynamic is likely to be significantly impacted by Justice Amy Coney Barrett’s recently-authored opinion in Fish and Wildlife Service v. Sierra Club, 141 S.Ct. 777 (2021), in which the Supreme Court has construed a key privilege in Freedom of Information Act (FOIA) jurisprudence in such a fashion as to likely put a serious damper on the ability of requesting parties to obtain record material. While the jury is still out as to whether Sierra Club is a landmark decision or something less that merely establishes important precedent as to the precise meaning of a “draft” document, its effect on advocacy organizations, environmental ones in particular, has already become readily apparent, with resultant calls for Congressional action to revise the FOIA so as to mute the impact of the ruling.

Read more here.

FOIA News: OIP releases summary of FY 2020 Annual FOIA Reports

Summary of Fiscal Year 2020 Annual FOIA Reports Published

Dep’t of Justice, OIP Blog (May 13, 2021)

The Office of Information Policy (OIP) has released its Summary of Annual FOIA Reports for Fiscal Year (FY) 2020.  This summary of government-wide data serves as a comprehensive analysis of the federal government's FOIA activities during the previous fiscal year.  The annual summary looks at key statistics in FOIA administration and identifies trends in FOIA processing as compared to prior fiscal years.  The purpose of the summary is to serve as a resource to help both agencies and the public to gain an understanding of overall FOIA administration.

As highlighted in the Summary, the government continued to receive high numbers of requests, over 790,000, during FY 2020.  As discussed in agency Chief FOIA Officer Reports, the COVID-19 pandemic, which began last March, had varying impacts on agencies' FY 2020 FOIA administration.  Nevertheless, agencies were able to process more than 770,000 requests and the overall average processing time for simple track requests decreased by more than nine days as compared to FY 2019.  While the government’s overall backlog increased, eighty-seven agencies reported closing FY 2020 with a backlog of less than 100 requests, sixteen had a backlog of 100-999, and sixteen had a backlog of more than 1,000. 

OIP's summary is available on its Reports page, where it can be compared with previous summaries dating back to FY 2006.  As previously announced on March 2, 2021, all agencies subject to the FOIA finalized their FY 2020 Annual FOIA Report data.  This information can be easily viewed, compared, and analyzed on the recently redesigned FOIA.gov Data page.  Subscribe to FOIA Post email updates to receive additional FOIA updates from OIP. 

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Blogpost published here.

Report available here.

FOIA News: White House releases FOIA-exempt visitor logs

Biden releases first White House visitor logs, but some will remain secret

By Steven Nelson, NY Post, May 7, 2021

The White House on Friday released visitor logs from President Biden’s first weeks in office, but admitted that some entries will remain secret.

White House visitor logs have the power to expose outside influence at the highest levels of government, particularly by unsavory figures. But the White House said it will remove names from periodic disclosures at its own discretion.

Read more here.

FOIA News: OLC in spotlight after judicial walloping

Judge's decision on Barr memo puts spotlight on secretive DOJ office

By Harper Neidig & Rebecca Beitsch, The Hill, May 6, 2021

A small but powerful section of the Department of Justice (DOJ) is under renewed scrutiny after a federal judge tore into former Attorney General William Barr and ordered the DOJ to release a memo that let former President Trump claim he was exonerated by the Mueller probe.

Critics of the Office of Legal Counsel (OLC), which provides legal advice to the White House and Cabinet agencies, have long argued it acts as a rubber stamp for the president and essentially drafts laws behind closed doors. The judge's accusation this week that the OLC was tasked with clearing Trump's name is only likely to increase calls for reform and greater transparency.

Read more here.

FOIA News: FOIA Advisor's Allan Blutstein featured on OGIS's "FOIA Ombudsman" Blog

Earlier this week, OGIS published an interview with FOIA Advisor’s Allan Blutstein, who is currently serving a term on the FOIA Advisory Committee. The interview, which was conducted as part of a series profiling all of the current committee members, is hosted on OGIS’s blog, “The FOIA Ombudsman.”

Getting to Know the FOIA Advisory Committee: Allan Blutstein
Kimberlee N. Ried, The FOIA Ombudsman (May 5, 2021)
https://foia.blogs.archives.gov/2021/05/05/getting-to-know-the-foia-advisory-committee-allan-blutstein/

Today we present an interview with Allan Blutstein, Senior Vice President at America Rising Political Action Committee and a member of the 2020-2022 FOIA Advisory Committee. This is part of a series of posts on the Committee, whose members are FOIA experts from inside and outside of government and who are appointed by the Archivist of the United States.

Why did you seek to serve on the FOIA Advisory Committee?

Good question, because as Groucho Marx once said, I generally do not want to belong to any club that will accept me as a member. In all seriousness, I echo the sentiments of current and former Committee members who have noted the Committee’s mission, the collaborative nature of the Committee’s work, and affection for the FOIA as inspiring their applications. Perhaps unlike many members, however, I was not an early supporter of the Office of Government Information Services when it was first proposed in 2007. At that time I was working at DOJ, which was sufficiently concerned about losing certain aspects of its FOIA turf that it tried to starve OGIS of its funding. Not that I had anything to do with that, but I feel as if I am making amends now.       

What do you hope to accomplish?

The Committee has covered a lot of ground over the past six years, issuing a remarkable 22 recommendations in the past term alone. Nevertheless, there has been no shortage of ideas on topics to explore this term and I look forward to evaluating them and engaging in a healthy debate.  I do not have a specific goal in mind other than to focus on the work; the results will take care of themselves.    

What is FOIA’s biggest challenge?

A familiar refrain is that FOIA is “broken.” It would be difficult to dispute, for example, that a significant number of requests are gathering dust in agency backlogs. Is the structure of the statute to blame or does the fault lay with a lack of agency resources or both? I suspect both. The statute itself is decidedly requester-friendly. Requesters may file unlimited requests that need only reasonably describe the records sought; lawsuits are permitted after a mere 20/30 business days regardless of the volume of records involved; untimely responses relieve most requesters of any fee obligations; and now even exempt records cannot be withheld unless agencies meet a nebulous foreseeable harm requirement.  That’s a tough hand for agencies to play and I confess that I am glad to be on the other side of the table now. Having said that, the Committee’s very own Dr. A. Jay Wagner makes a strong case in a 2017 study that agencies spend too little on FOIA administration and that the statute should require earmarked funding.  If you believe FOIA is “essential” and not an “extravagance,” to borrow Dr. Wagner’s terms, that policy position makes a lot of sense.  

Tell us about your favorite FOIA moment.

During my time as a government attorney, I particularly enjoyed reviewing informant files, getting through the last day of the fiscal year, and watching the dynamic duo of Richard Huff and Daniel Metcalfe in front of an audience. I can’t really pick out one “favorite” moment, but I’ll never forget getting lost in the FBI Headquarters building. I later learned that the lack of intelligible hallway signs was intentional (so as to confuse intruders), which made me feel slightly less embarrassed. As a requester, I’d rank these two award-winning moments as favorites:  (1) receiving the unredacted personnel file and SF-86 of a former Postal employee running for Congress; and (2) getting fan mail from a random federal prisoner, courtesy of DOJ misaddressing its acknowledgment of my request. However frustrating FOIA requesting might be, unpredictable agency responses such as these are an elixir.   

FOIA News: FOIA Advisory Committee to meet June 10, 2021

The next meeting of the 2020-2022 term of the Freedom of Information Act Advisory Committee will be held remotely on Thursday, June 10, from 10 a.m. to 1 p.m. The meeting is open to the public and will be livestreamed on YouTube. See more here.