SGI Statement on the Justice Department obtaining AP phone records

The action of the U.S. Department of Justice is an affront to the relationship between the government and news media that our nation’s founders established over two centuries ago.  Journalists experienced in reporting on global affairs and national security respect the government’s need to keep information confidential to protect national security and carefully consider the government’s concerns when reporting on such matters.

Last year Congress rejected a package of changes from the Senate Intelligence Committee that would have redefined the relationship between the government and press on reporting related to global affairs and national security. Until the Justice Department’s actions are better explained, they appear to be another reaction that unnecessarily threatens the balance between the government’s right to keep secrets to protect national security and the public’s right to be informed about global affairs. While delicate and sometimes tense, this balance has never been disrupted to the point that our national security is breached; quite the contrary, in fact:  thorough reporting on national security issues almost always serves the public ‘s and government’s interests and makes our nation safer.

The Sunshine in Government Initiative is a coalition of media associations promoting greater transparency in the federal government. Members include the American Society of News Editors, The Associated Press, Association of Alternative Newsmedia, National Newspaper Association, Newspaper Association of America, Online News Association, Radio Television Digital News Association, Reporters Committee for Freedom of the Press, and Society of Professional Journalists.

House panel’s pointed letter to Justice sends impatient message on #FOIA

In a renewed and welcome spirit of bipartisanship, the Chairman and Ranking Member of the House Oversight and Government Reform Committee earlier this week sent a letter to the Justice Department’s Office of Information Policy (OIP) asking pointed questions about OIP’s actions to encourage agencies to comply with FOIA by reducing backlogs, reigning in the use of statutory exemptions and updating FOIA regulations.  We’re especially appreciative that Chairman Darrell Issa (R-Ca.) and Ranking Member Elijah Cummings (D-Md.) mentioned a database of the statutory exemptions to FOIA that we compiled and ProPublica published a while ago.

This is a great time for FOIA because so much has evolved since Congress enacted the 2007 FOIA amendments (pdf) five years ago. FOIA Online is now a realistic option for agencies to go digital with their FOIA operations while realizing huge savings for the federal government, an important aspect to getting any legislation through Congress.

Congress could mandate that agencies move to FOIA Online as their current contracts for FOIA processing expire, invest the savings from the move to a shared service to improving FOIA.  Improvements could include developing further the FOIA Online system, targeting efforts to improve FOIA processing and reduce backlogs and delays, and quickly convening a FOIA Delays Commission to compile and identify other areas for improvements.

There are many problems with FOIA administration today and many areas for improvement.  Some require executive branch action while others would require legislation.  Any legislative actions around FOIA will have attract the support of Senate and House leaders, a growing number of whom want to see the Freedom of Information Act inform the American public while protecting what deserves protection and serve as a dependable tool for obtaining from government vital information in a timely, efficient and impartial manner.

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:

Fixing FOIA: Commentators reacting to DOJ’s reversal

The reaction was swift when the Justice Department confirmed in a letter to Senators Charles Grassley and Patrick Leahy that they would not move forward with their plan to say documents don’t exist when, in fact, they do.  You can read the reaction through a simple Google search.

Fixing FOIA update: Justice backs away from “lying”

Today we’re happy to note the Justice Department is withdrawing its proposed rule to sanction responding to certain FOIA requests for law enforcement records as if records did not exist when, in fact, information does exist (but is out of FOIA’s reach).

Fixing FOIA: Justice proposal yet again shows FOIA needs leadership

A current, completely avoidable squabble arose this week over how the Justice Department should word responses that could reveal the existence of an investigation.  This dispute again shows the FOIA needs more attention and forceful leadership to resolve persistent problems and make the FOIA process work better.

Here’s the current quandary:  How should the Justice Department respond to FOIA requests without tipping off suspects who are targets of secret criminal investigations?  Individuals or private entities trying to confirm whether they are subject to an investigation turn to FOIA as a convenient tool.  They file requests for documents hoping the government’s response will reveal whether an investigation has been opened, closed or didn’t exist in the first place.  To avoid tipping its hand, the government’s response has to be identical regardless of whether records exist or not.  The FOIA statute allows the government to “treat [such] records as not subject to the requirements of” FOIA. That means, don’t review the information to redact sensitive material and disclose the rest; simply ignore the information altogether.

The Justice Department has proposed that, in these circumstances, the government should respond “as if the excluded records did not exist.”  But that goes too far, the Electronic Privacy Information Center charges.

Clearly the government should not say records do not exist when, in fact, they may.  Nor should the government’s response tip off targets of investigations.  But there’s an easy solution to this problem, as the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org noted in their joint comments.  The government could give an identical response explaining it would neither confirm nor deny the existence of a record. (This isn’t a new idea, of course.  It’s longstanding practice called a “Glomar” response started when the U.S. didn’t want to confirm or deny it had used a massive vessel called the Glomar Explorer specifically designed to take possession of a sunken Soviet submarine.)

The nonprofit groups’ comments trace the debate on how agencies should respond going back decades. While the government’s interest in protecting confidential investigations is serious, and the public’s interest in proper administration of FOIA, the fact this has not been resolved is remarkable.  The approach suggested by the nonprofit groups should allow the government to withhold while giving a truthful, informative and standard response to the requester.

Add this to the longstanding problems that require better leadership to ensure FOIA is implemented in a timely, useful manner.

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.

Flurry of FOIA Findings from Justice

The Justice Department’s office that guides agencies on FOIA obligations assessed each cabinet department’s progress meeting their FOIA obligations and published the results in a side-by-side comparison chart that should encourage improvements at lagging departments.

This approach is a welcome step toward holding agencies more accountable for their FOIA performance.

For many years throughout several administrations Justice’s Office of Information Policy focused on encouraging compliance with FOIA through guidance, trainings and publishing annual statistics.  This assessment reports on and evaluates FOIA compliance and names names.  While the details of the assessment are less clear than they could be, the study makes a valiant effort to show who is making progress and who isn’t.  For instance, the Veterans Administration, Department of Energy and Commerce Department have watched their backlogs increase for both new requests and appeals. Four others also saw longer wait times for new requests.

The departments struggled to close out their ten oldest requests as well.  Last year only Justice, Interior and Health and Human Services were able to close out their ten oldest initial requests and ten oldest appeals. (Congratulations to those agencies; better luck next year to the others.)

We’d encourage departments and agencies to post their own scores on their FOIA pages along with realistic but ambitious goals for improving next year. FOIA.gov should show these performance statistics and goals in each agency’s profile.  And of course departments and agencies should follow through to meet those goals. It would be a sign that agencies are serious about making FOIA work better.

Pendulum swings towards disclosure, but agencies may push back

Advocates of transparency and access to government-held information may have gotten more than they expected in the Supreme Court’s recent Milner v. Department of the Navy decision, as the high court rejected a long-running agency exemption as impermissibly overbroad. But as agencies try to decide which information may now be eligible for release, we are concerned that they may overcompensate by using other exemptions to withhold information, by pushing a hodgepodge of legal and political protections, or both.