For OGIS, road to recommendations reveals not enough independence

When the Office of Management and Budget cleared the FOIA Ombudsman to issue its recommendations for improving FOIA operations, it was a win in the battle for open government.  However, the difficult process, in which we and others made a stink and Congress had to become involved, has made clear that the Office of Government Information Services does not yet have the independence that Congress considered so crucial for it to succeed.

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.

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.

Advocates, officials discuss sunshine measures

Here’s a brief summary of testimony by witnesses at a hearing of the Senate Judiciary Committee this morning on the Freedom of Information Act.  Our appreciation to Chairman Patrick Leahy for holding the hearing (and adjusting the schedule to avoid conflicting with “FOI Day” at the Freedom Forum).

This week’s forecast: Sunshine!

Update: SGI coordinator Rick Blum will be testifying before Darrell Issa & the House Oversight and Government Reform Committee hearing on Thursday, March 17 on FOIA.

It’s Sunshine Week!  Yes, for the next seven days, the Sunshine in Government Initiative will join many other groups, journalists, activists, and citizens in celebrating Sunshine Week, from March 13-19, with a variety of events and activities designed to raise awareness of our efforts to improve the availability of government information for the public.

Monday, March 14	Freedom of Information Day Celebration (9:30 AM, Collaboration on Government Secrecy)
	Lobbying reform panel discussion (2:00 PM, Advisory Committee on Transparency, 2203 Rayburn)
Tuesday, March 15	Senate Judiciary Committee hearing on FOIA (10:15 AM, 226 Dirksen)
Wednesday, March 16	Freedom of Information Day (8:30 AM, at the Freedom Forum)
Thursday, March 17	James Madison’s birthday  Oversight & Government Reform Committee hearing (9:30am start, 2154 Rayburn HOB) [added 3/15/11]
Friday, March 18	OpenTheGovernment.org‘s Sunshine Week event/webcast: “The Road Forward on Open Government” (12:00 PM, at the Center for American Progress)

While Washington-based, these events reflect issues of nationwide interest and impacts. Journalists and media organizations across the country will be covering the policies and people involved, from national figures to local heroes.

AU’s “Exemption 10″ blog is a FOIA exemption we can support

Normally, we are inclined to be wary of new exemptions to the federal Freedom of Information Act (FOIA), but we feel confident that Exemption 10, the FOIA-based blog of Wendell Cochran at American University’s Investigative Reporting Workshop, deserves our support as a fellow advocate of transparency.

Exemption 10 is designed to report on FOIA, covering everything from litigation to policy to individual experiences, as part of an effort to improve public access to government information and make it easier for people to understand how FOIA works and doesn’t work for journalists and citizens. Cochran, who is the founding senior editor of the Investigative Reporting Workshop, has over forty years’ experience in journalism as an award-winning reporter and editor.

Mining to resolve a dispute, OGIS gets the shaft

CNN’s Anderson Cooper talks a lot about transparency.  He focused on transparency troubles while covering the gulf oil spill.

Watching the Chilean mine rescue unfold, on October 12th Cooper noted that the Chilean government’s rescue operations have been more transparent than similar responses to mining disasters in the U.S.

If the way the Labor Department ignored the FOIA mediator’s office is any gauge, he may have a point.

‘Predacting’ information

Predact isn’t a word. But it should be.

Here’s my definition:

Pre*dact’ — From reductio (compressing, editing):Redacting information that is not releasable under open government law (such as FOIA) in anticipation of public disclosure (and prior to a request for public release).

(Hey, if Sarah Palin can make up words, we can, too.)