#FOIAsurvey update re: FOIAonline

Our efforts to survey federal agencies (@sgichris, #FOIAsurvey) about FOIAonline are starting to bear fruit. We have put out feelers to most of the forty agencies and departments responsible for over 99% of FOIA requests each year, and we can identify some trends:

• There is definitely more interest. We had expected as much, since the FOIAonline portal offers distinct benefits for individual agencies and requesters, as well as members of each group in the aggregate, but it’s nice to have this recognized by additional agency FOIA personnel.
• There are plenty of existing contracts. Which is how things should be; we’re glad agencies have invested in their FOIA-processing systems. We’d just like to see agencies consider FOIAonline as an option when the opportunity arises.
• There is a lot of voicemail. Given the chronic laments of both FOIA requesters and agency staff, that a lack of resources prevents agencies from responding to FOIA requests and related questions as quickly as they’d like to, this is not a surprise. (We hope the people whose numbers we called were busy helping other callers at the time.)
• There is some confusion. We did have one agency respond that FOIAonline is for agencies which don’t have an electronic processing system. To which we’d say, (1) We certainly hope any non-electronic agency at least investigates FOIAonline; (2) Even an agency with an electronic processing system may benefit from joining FOIAonline; and (3) We hope that nobody thinks “We’ve already got an electronic system so we shouldn’t even check out FOIAonline.”
• Talking about these issues will help FOIAonline evolve. The EPA, Department of Commerce, and OGIS/NARA have developed FOIAonline through a thorough process, continuing to refine the system and reach out to stakeholders, and while they have summarized some of their most frequent answers, we think our survey can provide additional information and perspective.

While none of the above items may be a complete surprise, the first round of responses does make us optimistic that agencies are aware of FOIAonline, that they are aware of the benefits it is capable of offering, and that the current scope of agency involvement is a function of its recent development. One agency FOIA staffer explained that while the agency wasn’t ready to commit to FOIAonline yet, it did seem like it was the future.

So, we want to make sure it’s the best, most comprehensive and efficient future we can build.

Can you give 5 minutes for FOIA Online?

For Sunshine Week 2013, SGI member groups are surveying federal agencies to help promote FOIA Online, a system to make, process, and view FOIA requests – and we need your help!

Freedom (of Information) isn’t free; pay it forward by citing FOIA in reporting

As part of our efforts to support improved administration of the federal Freedom of Information Act, we make stories based in part on FOIA easy to find in our “FOIA Files” database. But we’re only able to collect those stories effectively and efficiently when journalists and editors cite FOIA by name, spelled-out or as an acronym, so that the stories turn up when we conduct searches.

While it’s true that allusions to access to “federal records,” and references to documents being “obtained,” can provide hints about the source of the documents, we can only include stories in our database if the reporter indicates that he or she used FOIA. (Reporters: we also take emails at sgi@sunshineingovernment.org.) And the average reader may not realize the role, and value, of FOIA if journalists don’t highlight it. We realize that filing FOIA requests can be frustrating and feel futile, but when those efforts elicit information, we like to focus attention on those stories as examples of the system working, for journalists, FOIA officers, and the public.

Prospects for mediation at OGIS

The OPEN Government Act of 2007, which amended the Freedom of Information Act (FOIA) and created the Office of Government Information Services (OGIS), set out two tasks for the fledgling agency in the new section (h). First, OGIS is expected to review administrative agencies’ Freedom of Information Act (FOIA) policies, procedures, and compliance – and use what it learns to propose policy changes to Congress and the President. (As we blogged about last month.)

Second, and central to this analysis, OGIS is expected to “offer mediation services… as a non-exclusive alternative to [FOIA] litigation.” Mediation services, as OGIS explained, includes “a range of services within that spectrum. Both mediation and facilitation are forms of ‘mediation services.’.” During its first year, OGIS reported that facilitation succeeded fully in about 82% of cases (68/83).

RCFP’s Dalglish testifies for SGI about DOL “lock-ups”

A House panel this morning encouraged the Labor Department to abandon its announced changes to the way it releases unemployment data and other market-moving statistics.  Media groups protested almost immediately when the Labor Department announced on April 10th that it would force media groups to rip out equipment from the labor Department’s press room and require reporters to draft stories on government computers as part of wholesale changes intended to prevent early leaks of jobless claims and other economically significant information.

Spring cleaning for b(3) provisions

Spring is a time of growth, change, and ritual; for the openness community, that means Sunshine Week, the release of agency annual FOIA reports, and fresh hope that this year will bring more transparency from the federal government.

Specifically, this year’s FOIA reports detail the use of several new b(3) provisions:

FOIA: The truth laces up its shoes

Imagine you’re in a bar and the guy next to you starts impressing a crowd with stories of battlefield bravery and military decorations. Only you know he’s faking. How could you prove it? It’s not far-fetched: California water official Xavier Alvarez claimed to be a Marine who retired with twenty-five years of service and a Congressional Medal of Honor for getting “wounded many times by the same guy” – but listeners had no way to know whether he was being honest.

Better late than never: grand jury material of historical value

Grand jury information is one of the most sought-after types of information that the public cannot see generally under the federal FOIA. Think spies, organized crime, and sports stars accused of cheating through performance-enhancing drugs. So it is welcome to see the Justice Department recently announce a move to open the door on grand juries to the public just a little more.

American laws and courts have long recognized that grand jury information merits secrecy, but several recent cases developing a “historical significance” exception have led the Department of Justice to propose codifying the terms under which courts may release such material. Traditionally, grand jury information has been protected – indefinitely – by Rule 6(e) of the Federal Rules of Criminal Procedure, which provides five specific exceptions. Rule 6(e) is of interest to us because it is one of the most widely- and frequently-used statutory exemptions to the Freedom of Information Act (FOIA), called a “b(3)” after the subsection of FOIA permitting such additional exemptions.

In an October 19 letter, Attorney General Eric Holder recognized that litigants had won the release of grand jury information regarding several cases of historical significance: the Alger Hiss case (released in 1999), the trial of Julius and Ethel Rosenberg (2008), a 1964 jury-tampering prosecution of Jimmy Hoffa (Sr.) (2009), and testimony from ex-President Richard M. Nixon in a 1975 case involving Watergate (2011).

Here’s the problem: As Holder noted, none of these releases fell under any of the existing exemptions to secrecy under Rule 6(e). So, whether the courts will release grand jury information has become entirely unpredictable, based solely on the terms of the statute. To provide more clarity, Holder proposes to permit disclosure after thirty years – under certain conditions – and require disclosure after seventy-five years. (As Steve Aftergood noted, the thirty-year time period proposed dovetails neatly with the disclosures already ordered by courts.)

While the substance of this issue might not be a central concern of ours at SGI, it does involve several issues of interest to us:

• We are pleased to see courts and DOJ in preliminary agreement that an open-ended rule conferring secrecy can be weighed against the public interest in government-held information of historical significance.
• We are glad that the OPEN Government Act of 2007 amended FOIA to require agencies to provide more detailed information about their usage of each b(3) exemption statute, which enables us to gauge the importance of provisions such as Rule 6(e).
• We are also glad to see more public attention to, and consideration of, records of historical significance – and efforts to obtain information that can help us understand more about our nation and our history.

By the way, if anyone has run into a Rule 6(e)-based FOIA denial that seems unwarranted, drop us a line.

FOIA stories: 600 and counting

The SGI “FOIA Files” database has surpassed 600 entries, a testament to the persistence of journalists and the hard work of agency personnel who process Freedom of Information Act requests.  This database is a collection of news and other stories that relied on a FOIA request to inform the public.

In the last year, FOIA has enabled the public to understand more about the politics and policies that shape people’s lives:

The recent financial crisis and its ongoing impact on the economy:
#592: “How Hank Paulson’s inaction helped Goldman Sachs” (10/10/10)
#615: “Morgan Stanley Speculating to Brink of Collapse Got $107 Billion From Fed” (8/22/11)
#616: “Wall Street Aristocracy Got $1.2 Trillion in Secret Loans” (8/22/11)

Fallout from disasters, both natural and man-made, continues to confound government and affect people’s lives:
#589: “Spills raise fears about inspection of pipelines” (9/26/10)
#599: “Emails show struggle to estimate size of Gulf of Mexico oil spill” (11/25/10)
#613: “U.S. Nuclear Regulators Privately Doubted Power Plants Despite Expressing Public Confidence, Documents Show” (4/6/11)
#614: “Emails expose BP’s attempts to control research into impact of Gulf oil spill” (4/15/11)

War and its consequences continue to ripple through people’s lives:
#585: “Psych meds spike among younger troops” (9/3/10)
#586: “Veterans Agency Changes Terms for Prudential Claims” (9/14/10)
#602: “Documents raise questions on treatment of detainees” (1/22/11)

Law-enforcement agencies try to maintain a balance between effective, appropriate surveillance and respecting civil liberties:
#603: “Photographer Ernest Withers doubled as FBI informant to spy on civil rights movement” (9/12/10)
#604: “EFF obtains docs that reveal when authorities can get your data from social media companies” (1/20/11)
#605: “Civil Rights Activist Benjamin Hooks’ FBI File Details Racist Threats Against Him” (1/25/11)
#612: “APNewsBreak: File shows threats on abortion doctor” (4/5/11)

We look forward to finding more stories that use FOIA to inform the public as requests work their way through the pipeline and journalists continue to use government information to help explore and explain the world around us.

Issa Offers Transparency Reform Package

On Monday, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.) introduced H.R. 2146, the Digital Accountability and Transparency Act of 2011 (DATA Act; text), in an effort to make federal spending information easier to collect and track, so people can evaluate and compare federal expenditures. The legislation is designed to build on previous legislative efforts and technological advances, while establishing an independent board to monitor federal spending.

“Incompatible technologies, inaccurate data, and a lack of common standards impede transparency,” Issa explained in a press release. “The Digital Accountability and Transparency Act will revolutionize the accessibility of government information.”

The DATA Act builds on previous transparency initiatives such as USASpending.gov, a product of the Federal Funding Accountability and Transparency Act of 2006 (FFATA), and Recovery.gov, an offshoot of the American Recovery and Reinvestment Act of 2009. (It also comes the same day the Obama administration issued an executive order pushing very similar efforts.) The DATA Act, if enacted, will:

• consolidate information reported by agencies and recipients on a single electronic platform,
• reduce overlapping reporting systems/websites/databases,
• delegate some federal-spending tracking responsibilities from the Office of Management and Budget (OMB) to a proposed Federal Accountability and Spending Transparency Board (“FAST Board”), and
• empower the FAST Board to establish standards for data.

Shortcomings in existing federal data and reporting practices led Issa to introduce these adaptations. For example, the Sunlight Foundation found that USASpending.gov was providing flawed data about federal programs, which prevents people from seeing trends or drawing meaningful conclusions. However, as OMB Watch notes, the DATA Act takes one step forward at the price of threatening to take two steps back when the new law would expire. That’s because House rules of the 112th Congress require new programs to sunset within seven years (unless successfully reenacted into law). And because the DATA Act repeals FFATA instead of merely updating it, after seven years the DATA Act’s sunset would take its FFATA-related provisions with it, leaving us with no DATA Act – and no FFATA either.

We agree that federal spending data could – and should – be gathered and maintained in a more efficient manner. We suspect that improvements in technology can keep up with an ever-increasing volume of data. We hope Congress can create systems for handling this data and acting on it that are more functional than the status quo… but not at the cost of undoing some of the hard-won progress of recent years.