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Bursts of Cloudiness, Like Reports that Appeals Reveal Improper Initial Withholdings in 1-3 Cases, Don’t Darken Sunshine Week Optimism: FRINFORMSUM 3/19/2015

March 19, 2015
Why the Archives motto is "appeal, appeal, appeal."

Why the Archive’s motto is “appeal, appeal, appeal.”

This Sunshine Week, the national celebration of open government and freedom of information, the Associated Press reported the Obama administration, which promised on day one to be the “most transparent” in history, set new records for censoring government documents and denying them in full. Equally troubling, AP also found more instances during the Obama administration than any other of agencies being unable to locate records, and “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.” Unfortunately, according to the latest figures from the Department of Justice, which come from FY2013, only 2.8% of all denials were appealed that year. Extrapolating these statistics would mean that during FY2014 roughly 154,750 requests had information improperly withheld.

AP also found the U.S. “spent a record $434 million” to respond to increasing FOIA requests. “It also spent about $28 million on lawyers’ fees to keep records secret.” Archive FOIA Project Director Nate Jones, in a Sunshine Week op-ed on unnecessary FOIA fees, notes that charging exorbitant FOIA fees – like the $1.5 million price tag the DEA recently affixed to a FOIA response – for FOIA requests is unnecessary from a fiscal perspective. Jones points out “Total fees paid by FOIA requesters were just $4.3 million, less than one percent of the cost of implementing the Act. The use of fees to dissuade people from making requests becomes even more questionable when one understands that the money goes to the U.S. Treasury’s General Fund, not to defray actual agency FOIA costs.”

OIPs new guidance is good; now we just need to make sure it gets enforced.

OIPs new guidance is good; now we just need to make sure it gets enforced.

The Department of Justice’s Office of Information Policy (OIP) released  good guidance on proactive disclosure this week, echoing many of the sentiments expressed in the National Security Archive’s most recent FOIA Audit.  The Archive’s Audit tackled many federal agencies’ failure to meet the 1996 Electronic Freedom of Information Act Amendments (E-FOIA) requirement that mandates agencies post records already processed in response to FOIA requests, and records “likely to become the subject of subsequent requests,” online. The Audit argued that fulfilling this requirement would not only save agencies time and money, but “is the only tenable solution to FOIA backlogs and delays.”

OIP’s latest guidance seems to be in accordance with our Audits’ findings, and hedges earlier guidance that defines “frequently requested records” as those which have been released three or more times to FOIA requesters. Of course, it is time-consuming for agencies to develop a system that keeps track of how often a record has been released, which is in part why agencies rarely do so and are often in breach of the law even though agency FOIA offices have already spent valuable resources processing the requests. Recognizing this, OIP’s latest guidance says, “even in the absence of multiple requests for the same or similar records, agencies should use their best judgment at the time each request is received to determine whether they believe the responsive records concern a popular topic that is likely to become the subject of subsequent requests in the future.”

Even more heartening, immediately below the guidance’s “frequently requested” records section are further instructions on “Posting [records] Before Receipt of Even One Request in Accordance with the President’s and Attorney General’s FOIA Memoranda.” The guidance will only be effective, however, if someone ensures agencies actually follow it.

Posting records electronically saves agencies time and money.

Posting records electronically saves agencies time and money.

The Archive’s E-FOIA Audit named those agencies that had the best overall performance proactively posting FOIA-processed records as our “E-Stars,” and those that had the worst performance as our “E-Delinquents.” FedScoop’s Whitney Blair Wyckoff contacted the “E-Delinquents” for comment. The Office of Science and Technology Policy (OSTP), one of the White House’s Executive Offices subject to FOIA and responsible for providing the Executive Branch technical advice, said “The Department of Justice issued OSTP’s FOIA program a report card with green lights across the board,” implying that a DOJ stamp of approval should satisfy all FOIA requirements. Of course, while OIP issued good new FOIA guidance this week, the office has previously issued guidance that undermines the statute and defended bad FOIA policy.

The National Security Archive joined eleven other groups in writing to both the Secretary of State and the Archivist of the United States requesting that they independently verify that Secretary Hillary Clinton’s e-mails containing federal records are transferred to the Department of State in their original electronic form. The letter asserts, “the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton’s personal aides. Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity.”

the Fed CIO Council is our latest repeat Rosemary Winner.

The Fed CIO Council is our latest repeat Rosemary Winner.

This year the National Security Archive awarded our annual Rosemary Award for worst performance in open government to the Federal Chief Information Officers Council for never addressing the government’s “lifetime failure” of saving its e-mail electronically. The Archive hoped that awarding the CIO Council the same award in 2010 would have served as a government-wide wakeup call that saving e-mails was a priority. Fallout from the Hillary Clinton e-mail debacle shows, however, that rather than “waking up,” the top officials have opted to hit the “snooze” button. Hopefully the Council will use this year’s award as a call-to-action.

New York Times reporter Jason Ross Arnold has an exceptionally well-balanced article on Obama’s transparency promises, noting that Obama deserves neither all the credit nor all the blame for his administration’s transparency successes and pitfalls. Arnold surmises, “although the administration may still wind up as one of the better ones of the sunshine era, it may not serve as the model for the most transparent administration yet to come.”

One odd choice the administration did make that does little to bolster its transparency bona fides, however, is announcing the Office of Administration’s (OOA) exemption from FOIA and the deletion of its FOIA regulations during Sunshine Week. The OOA is also part of the White House’s Executive Office (though not the only one without FOIA regulations), and while previously subject to FOIA, a lawsuit has precluded the OOA from responding to FOIA requests since 2007. “I would say that it’s not a scandal,” Archive FOIA Project Director Nate Jones told VICE news, although Jones noted the timing was bizarre and indicated a lack of respect for FOIA within the administration. “It’s just crazy they chose Sunshine Week to flag the lack of access. Can you imagine a regulation with anti-environmental optics being rolled out on Earth Day?”

No wonder he fought so hard against allowing the public to access his papers...

No wonder he fought so hard against allowing the public to access his papers…

Our SunshineWeek #tbt is March 10, 1975, memorandum of conversation between Secretary of State Henry Kissinger and Turkish Foreign Minister Melih Esenbel. Discussing the 1974 US arms embargo against Turkey for its invasion of Cpyrus, Kissinger quips, “Before the Freedom of Information Act, I used to say at meetings, ‘The illegal we do immediately; the unconstitutional takes a little longer.’ [laughter]  But since the Freedom of Information Act, I’m afraid to say things like that.” Read Jones’ longer analysis here.

Be sure to check out Twitter tomorrow morning at 9:30 for Jones’ candid #FOIAchat about his role on the Federal FOIA Advisory Committee. Search #FOIAchat to follow the conversation.  Jones promises to do his best to answer any question asked by the twitterverse.

Finally, don’t miss tonight’s announcement of the winners of the inaugural FOILIES Awards – presented for the most “extraordinary and egregious” FOIA request responses. Spearheaded by the Electronic Frontier Foundation (EFF), the “winners” of the FOILIES Awards will be announced tonight, March 19th, at a happy hour jointly hosted by EFF, the Sunlight Foundation, and MuckRock from 5-7 p.m. at Lost & Found in Washington, DC. Check out the Archive’s FOILIES nominations here.

Happy FOIA-ing!

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