Anticipating FOIA requests & the oil spill: an update

Here’s an update on our earlier post urging agencies to affirmatively post online documents, videos, images and other information about the oil spill in the Gulf of Mexico before a FOIA request comes in.

It was a quick post, and it would have been a better piece if we had described what agencies have done to post information online.

BP operates a joint information center where many agencies, including the Coast Guard, Environmental Protection Agency, National Oceanic and Atmospheric Agency (NOAA), post information.  The joint website also includes BP and Transocean, which runs the Deepwater Horizon rig where the accident occurred.  The agencies themselves have a great deal of background information and daily updates on their response.

Despite this communications effort, two controversies have emerged: First, is the dispersant used, Clorexit, doing more bad than good when used in the unprecedented quantities that BP is pumping deep underwater in the Gulf?  EPA today ordered BP to select a less toxic dispersant, submit it to EPA within 24 hours, and begin using it on the spill within 72 hours.

Second, there are questions about how much oil is leaking into the Gulf each day, where the plumes of oil are sitting below the water’s surface, and whether the oil has reached the so-called “loop current” where it would hitchhike a ride around Florida and spread devastation up the East Coast.  By now, video images are widespread showing billows of a smoke-like substance rising from the broken pipe laying on the seabed.  Scientists reportedly are criticizing the lack of monitoring of the spill.

Despite BP’s efforts to clean up the spill, at this time, we did not see the video of the seabed (and archival footage from the start of the spill, for that matter) on the joint information center’s website.  This would be a good place to start. And keep up the work of keeping the public informed by anticipating other FOIA requests (or viewing the requests that have already come in and posting repeatedly requested information) and posting those responsive documents on the joint center’s website.

We can anticipate FOIA requests for oil spill documents. Why can’t agencies?

The oil spill in the gulf is lubricating the engines of lawsuits.  The Chicago Tribune reports that BP has hired a law firm to defend itself against what appears to be years if not decades of litigation.

And one could reasonably assume that with the national disaster will also come document requests.

Each agency with a hand in the gulf oil spill should set up a special public file online to deposit studies, correspondence and other information related to the government’s handling of this particular drilling operation.   In fact, back in 1996 Congress required agencies to do precisely that if they reasonably anticipated multiple FOIA requests to come for  the same information.  But this law has been widely ignored.

Or they could pool resources and follow the DocumentCloud model by copying documents that would be released in response to a FOIA request about the oil spill into a public vault where the public could view it.?

To be practical, the agencies could each day post documents they produce in response to the spill. The information would still be subject to a FOIA request, but since the agencies would have the telling documents online, fewer FOIA requests would arrive in their inboxes and they could focus on recovering the information they missed.

By building in access to the documents related to the spill response as the agencies are working on them (with limited redactions to protect personal privacy and other interests protected by FOIA), agencies would save future taxpayer dollars and the agency’s time as it goes back to reconstruct its actions in response to future FOIA requests.

Agencies trend toward withholding upon appeal reverses course in 2009

First, look at this chart compiled by friend of SGI and master FOIA data analyst Pete Weitzel.

It’s pretty.  But it also clearly shows agencies responded more positively to FOIA appeals (not requests) by releasing more information in full or in part.  And note also that fewer appeals were completed in 2002 to 2006  compared with the years before and after.  And in those years, there were fewer rejected FOIA appeals (with the partially and fully granted requests lower than in other years but not by much).

Two theories may explain this trend.  This may be a clear reflection of administration priorities.  Appeals are heard by upper-level agency counsel or more senior managers, and managers simply may not have responded to as many appeals.  It also may reflect a calculation by requesters that their apeals will not be successfully, so more requesters whose appeals would be rejected do not file them at all.

But interestingly, the trend started in 2008.  Did the increased attention to FOIA in Congress or the 2005 executive order spur agencies to look at their FOIA operations and plan improvements that are now paying off?  That may be.  This is the kind of suggestive data that spurs debates about how to improve FOIA without giving much insight into the cause of the shift.

Paring the annual report data with interviews with agency personnel and outside audits will give better insights into how to improve the system.  Otherwise, agencies will be putting out data that is of little value.

We’re hoping the Office of Government Information Services will be able to conduct studies and analyses that bring together performance trends with the problems requesters are facing (and bringing to OGIS for mediation) and the access to the FOIA officials to give clear insights into how FOIA really functions and what practical changes will improve agency readiness to handle FOIA inquiries.

Monday Links: Disclosing federal contracts, strengthening FOIA, Chicago a model of transparency?

Quick hits related to transparency:

• Washington Technology reports that the General Services Administration is starting to discuss ways to ease transparency around federal contracts.  Foreseeing a day that federal contracts would be made available to the public, GSA is looking to make the process of segmenting public and confidential portions of the contracts in an efficient standard manner to ensure fairness and efficiency, Alice Lipowicz reports.

• Veteran FOIA blogger and attorney Scott Hodes rounds up several practical ideas for strengthening the federal FOIA.
• The City of Chicago now posts online the logs of FOIA requests so anyone can view what information has been requested from city offices and who made the request, although Chicago Sun-Times City Hall beat reporter Fran Spielman sounds distrustful of the mayor’s intent behind the “information dump.”

Farm bill sleight of hand hides subsidy recipients

What do a Texas oil billionaire, a former NBA basketball star and a Washington “uber-lobbyist” have in common?  They all received money (legally) under a program to subsidize farmers.  But according to the Environmental Working Group, you can’t find out if they or others like them still receive payments because the U.S. Department of Agriculture is no longer publishing the names of individuals receiving payments.

All because Congress inserted during the closed conference committee meeting two provisions into the massive 2008 farm bill that gave the USDA the authority to do it.

Senate panel reviews espionage laws: uh-oh for the media?

Here’s a quick advisory for anyone interested in government-media tensions:  A  Senate panel will take a look at the Espionage Act this morning.  This hearing should be closely watched by media groups for any signs that the simmering tensions between the press over leaks will once again boil into direct conflict.

In 2006, the government grew increasingly hostile to press reporting based on unauthorized disclosures.  This year has not seen the kinds of revelations similar to the government’s warrantless wiretapping, monitoring international banking transactions, and secret prisons in Eastern Europe, each of which drew criticism from Congress and the executive branch when published.

Hopefully this will not be another round of misguided efforts to rewrite the Espionage Act to prevent the media from reporting important stories.  It should be remembered that journalists already balance getting the story with avoiding reporting specifics that might divulge sources or covert operations.  Recall the New York Times held their warrantless wiretapping story for a year before publishing the story over the objections of the White House.

More as this issue unfolds.

Senate’s Audit the Fed vote also tells Fed to disclose loans to banks

The Senate added to its financial reform bill a provision requiring the Federal Reserve to disclose loans made to banks that the government fought in court to withhold.

The amendment to the financial reform bill (pdf) by Sen. Sanders requires the Government Accountability Office (GAO) to audit the Fed.

Receiving less attention in reports is the requirement that by Dec 1, 2010, the Fed should disclose of all loans and other financial assistance made from December 1, 2007 to the day the legislation is signed into law.  The provision requires disclosure of the identity of who received the funds, the type of assistance, the date assistance was provide, and repayment terms.  Bloomberg had sued the Fed for this type of information

The negotiated language drops a requirement that the Fed disclose future loans and assistance programs every year going forward; thus, the amendment is silent on whether the Freedom of Information At would require disclosure of any loans or other forms of assistance before this date, if any were made, and any future loan programs.

So while it doesn’t specifically require disclosure of specifics about recipients of any future Fed assistance programs, it also doesn’t write into law a general exemption from FOIA for this type of information.

All in all, given that Congress has a record that favors giving new exemptions to FOIA — there are over 250 on the books that agencies have cited in the last decade — this is a substantial win for FOIA.

For more, read Bloomberg’s piece (of course I must link first to the news organization that sued the Fed). David Herszenhorn covers the vote for the New York Times.

Dave Drives Across America for Access

Last week we told you the National Press Club is putting on a FOI training featuring Dave Cullier (and this is an opportunity to remind you of the Club’s event on May 24th) in DC, but we failed to tell you Dave is driving and blogging across America to inspire and train people in using freedom-of-information laws.  Think James Madison meets John Steinbeck.

Justice Department forum to focus on tech, best practices

The Justice Department’s Office of Information Policy will convene agency “working groups” to encourage them to learn from one another about best FOIA practices, OIP announced. The first group will focus on technology applications in FOIA processing, while the second will discuss best practices generally in implementing FOIA.

This effort has merit: much of the trainings for FOIA personnel have given relatively little opportunity for agency personnel to discuss what they do and learn from their peers.  These groups would be most effective if they could document some of the biggest challenges agencies face and practical lessons from those who have dealt with them successfully.  The more practical, the better.

May update on FOIA ombudsman cases

More people are finding the Office of Government Information Services for help resolving problems with their FOIA requests, according to the latest monthly update from OGIS (pdf).

April brought 52 new cases to OGIS, a drop from 60 new cases in March.  March’s windfall likely came from the office’s visibility during Sunshine Week.  To its credit, each month OGIS has been able to close more cases than the previous month.

OGIS also reported this week (pdf) the office opened 206 cases since opening its doors in September 2009, resolving 149 of them as of May 5, 2010.  OGIS has hired a staff, started offering dispute resolution trainings for FOIA officers and made presentations at numerous conferences and workshops.

OGIS reports that roughly a quarter (24  percent) of its cases related to Privacy Act requests, which the office does not handle.  The biggest category of OGIS inquiries related to denials (28 percent).  Requests for information account for roughly another fourth of all requests, and delays spurred 16 percent of cases.  Other cases dealt with fees (9.5 percent) and other complaints.

OGIS has yet to report mediating a case of meaty differences between requesters and agencies.  Helping requesters avoid the annoying, frustrating and oftentimes confounding procedural problems with FOIA are a great contribution.  Requesters and agencies have not had a place to go for an independent voice to weigh in on FOIA disputes. How many of these resolved cases would have gone to litigation?  How many resulted in a different outcome, where the agency addressed a deficiency to avoid a later lawsuit, or a requester understood the nature of the agency’s decision to withhold, and avoided a costly lawsuit?  These are metrics that will show OGIS’s worth, but may be the hardest to come by.

We are still looking for that first good case where OGIS brought in a mediator to resolve a dispute.