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.

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.

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).

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Some context for some surveillance

When news broke recently that federal officials were pushing for new regulations to facilitate online eavesdropping (“U.S. Tries to Make It Easier to Wiretap the Internet”, New York Times, September 27, 2010), it seemed like there were two ways to interpret the situation:

Did the proposed powers represent a significant change from the status quo?

The administration’s proposal… would require reconfiguring of the Internet to provide easier access to online communications. –ACLU

Or did the proposed powers merely enable law-enforcement officials to continue doing what they had been doing?

We’re not talking expanding authority. We’re talking about preserving our ability to execute our existing authority in order to protect the public safety and national security. –FBI general counsel Valerie E. Caproni

We couldn’t help thinking this sounded familiar.

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Heading to talk with senior agency people about FOIA

As I head off to talk with senior agency officials about their FOIA programs as part of a day-long Justice Department training, I’m thinking about all the good ideas that FOIA requesters and researchers sent me. Top of the list for improving FOIA? Communication.

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