FOIA News: Let them eat cake

Bush’s Cake and FOIA Red Tape: A Whimsical Look at a Serious Transparency Issue

The practice of actually using the laws intended to promote transparency illustrates just how broken the process of legal disclosure can be.

By J. Pat Brown, WhoWhatWhy, Oct. 15, 2023

Government transparency earned a rare victory this week. Arkansas’s Gov. Sarah Huckabee Sanders’s attempts to strongly restrict her state’s Freedom of Information law received strong pushback, and may even result in that state enshrining transparency in its constitution. But while public support for the right to know as a concept is always a good thing, the practice of actually using the laws as intended illustrates just how broken the process of legal disclosure can be.

By way of illustration, consider this brief account of an early foray of my own.

The year 2016 was one of milestones for me: I got married, I turned a decade older, and I filed a public records request for photos of former President George W. Bush with cake. “Birthday or otherwise,” as the request clarified. 

Read more here.

FOIA News: Opinion Piece Says "It’s Time To Overhaul FOIA"

It’s Time To Overhaul FOIA

By Curtis Schube & Gary Lawkowski, RealClearPolitics, Oct. 16, 2023

When it comes to the federal government and responding to Freedom of Information Act (FOIA) requests, it is so commonplace for federal agencies to drag their feet and not provide fully responsive documentation that it is not even newsworthy when those agencies do not comply with the law.

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To this effect, we have identified a series of reforms that attempt to change agency incentives at the individual level, reduce backlogs for the most frequently requested records, and impose uniformity where there is arbitrary decision-making.       

One such mechanism is a dramatic expansion of proactive disclosure obligations to include the administrative record (which provides the rationale for government decisions), senior officials’ calendars and external communications (which shows outside influences on their actions), ethics records (which show potential conflicts of interest), and settlement agreements (which show the details of settlements between government and public interest groups). All of these records are vital to transparency and are a source of burden for the agencies (both in the search and production phases, as well as in the often unavoidable litigation phase). To be successful, agency compliance must be automatic and not subject to record custodians’ whims or bureaucrats’ prioritization with other incoming requests or duties.

Read more here.

Court opinion issued Oct. 12, 2023

Louise Trauma Ctr. v. DOJ (D.D.C.) -- on renewed summary judgment and following in camera review, concluding that DOJ’s Office of Immigration Litigation properly withheld some, but not all, presentation slides pursuant to Exemptions 5 and 6. Of note, the court chided DOJ for failing to cite Exemption 6 in its Vaughn Index despite being instructed to do so in its prior opinion.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Oct. 2, 2023

Stevens v. HHS (N.D. Ill.) -- determining in relevant part that: (1) EOIR could not deny requests seeking all records about certain third parties as unreasonably described, because plaintiff included requests for more specific items and EOIR did not assert that a search would require unreasonable effort; and (2) plaintiff’s request for screenshots of certain information contained in an agency database was readily reproducible and would not constitute the creation of new records.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: IRS using contractor for FOIA identity verification

IRS Has Rolled Out Identity Proofing for FOIA Requests

By Lauren Loricchio, Tax Notes, Oct. 2, 2023

The IRS has quietly rolled out identity proofing for Freedom of Information Act requests submitted through its online portal, a development that some transparency advocates find concerning.

The agency’s FOIA public access portal now says it is using a “sign on system that requires identity verification.” According to the site, users with accounts set up before June 26, 2023, will have to register or sign in through ID.me, a third-party contractor that provides verification services for the IRS and other government agencies.

Requesters can choose a self-serve ID-proofing option that requires a government-issued ID and selfie or may opt for a video call with an ID.me representative, which doesn’t require the submission of biometric data.

Read more here (accessible with free trial).

FOIA News: ICYMI, D.C. Circuit hears FOIA case on transition team records

The U.S. Court of Appeals for the District of Columbia Circuit entertained oral arguments on October 6, 2023, in Insider Inc. v. GSA, which concerned records of President Trump’s and Vice President Pence’s 2020 transition teams. The district court upheld GSA’s redactions under Exemption 6.

FOIA News: Leading Right-of-Center Organizations Launch Transparency Coalition

Leading Right-of-Center Organizations Launch Transparency Coalition

Right on Transparency, Oct. 10, 2023

A group of leading right-of-center groups launched the “Right on Transparency” coalition dedicated to comprehensive government transparency reform with an eye to increasing accountability and creating a more engaged citizenry. The coalition is dedicated to the principles of open government, and, to further those principles, will draft model policies at the state level and educate the public on transparency laws and issues.

Visit the coalition website at rightontransparency.org.

Read more here.

FOIA News: State Dep't proactively releases declassified docs using AI

State Department declassifies diplomatic cables using AI assistant

By Justin Doubleday, Fed. News Network, Oct. 9. 2023

A directive to U.S. embassies in India and Pakistan requesting an urgent evaluation of economic and financial vulnerabilities in those countries.

A report from the embassy in Sofia detailing discord in the Bulgarian Socialist Party.

And an internal summary, prepared by the U.S. embassy in Pretoria, of Secretary of State Madeleine Albright’s meeting with President Nelson Mandela in South Africa.

Those messages are among dozens of newly released diplomatic cables from late 1997. The State Department declassified the cables using a machine learning tool developed by the agency over the past year. The cables were not subject to any Freedom of Information Act requests, but State officials determined copies of the documents could be publicly released through the “proactive disclosure” provision of FOIA.

Read more here.

Court opinion issued Sept. 30, 2023

Shtyenshlyuger v. CMS (D.D.C.) -- in a 71-page opinion, concluding that: (1) plaintiff was not required to administratively appeal agency’s response that was issued after he had filed suit; (2) agency failed to explain how it processed approximately 3200 responsive pages, and its search terms and search locations were incomplete; (3) agency failed to establish that all of its Exemption 4 withholdings met the “commercial or financial threshold,” let alone the “confidential” prong, and it wholly ignored the statute’s foreseeable harm requirement; (4) agency properly withheld some but not all records pursuant to Exemption 5’s deliberative process privilege, and it failed to carry its burden with respect to its attorney-client privilege withholdings; and (5) agency could not withhold complaint files under Exemption 6 merely because they were located in a Privacy Act system of records, noting that CMS failed to explain whose privacy interest it sought to protect and “how disclosure would ‘constitute a clearly unwarranted’ invasion of that unspecified interest.”

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Sept. 29, 2023

Energy Policy Advocates v. EPA (D.D.C.) -- ruling that agency properly relied on Exemption 5’s deliberative process privilege and met the foreseeable harm test in withholding portions of a presentation used “to brief White House officials about potential strategies the EPA was considering for regulating power-plant pollution.”

Putnam v. U.S. Army Reserve Bd. Agency (W.D. Okla.) -- holding that agency’s belated response to plaintiff’s request warranted no after-the-fact remedy, and that the agency demonstrated the adequacy of its search.

Stein v. CIA (D.D.C.) -- concluding that: (1) CIA’s discovery of two additional responsive records did not warrant disturbing court’s initial decision that CIA’s search was adequate; (2) CIA was required to provide actual documents to plaintiff, as ordered in previous ruling, as opposed to a list of names that were not protected by Exemption 6; and (3) neither State Department, FBI, nor ODNI adequately addressed court’s prior concerns about certain withholdings, which necessitated further briefing from the latter two agencies and in camera review of State’s disputed record.

Summaries of all published opinions issued since April 2015 are available here.