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DOJ FOIA Report Shows OIP Still Living in “La-La-Land”: FRINFORMSUM 6/6/2019

June 6, 2019

Year after year, the Department of Justice’s Office of Information Policy (OIP) issues a summary of annual agency FOIA reports that misinterprets FOIA performance across the federal government to the point the report’s main conclusions are unreliable, and this year is no different.

Chaffetz, left, told Pustay, right, that she lives in “la-la-land” if she thinks FOIA is working.

OIP’s mandate is to “encourage” government-wide FOIA compliance – an important step short of actually enforcing the law – and its longtime director, Melanie Pustay, doggedly refuses to acknowledge FOIA’s systemic problems, agencies’ hostility to complying with FOIA, or her office’s unwillingness to take agencies to task for not following the law. In 2015 Pustay was accused by the former chair of the House Committee on Government Oversight and Reform, Rep. Jason Chaffetz (R-Utah), of living in “la-la-land” for testifying that she believed FOIA was being properly implemented, and Senator Chuck Grassley told her during a 2018 hearing that her explanations for why the “release to one, release to all policy” had yet to be finalized (it still hasn’t) didn’t pass the “common-sense test.”

A great example of a “partial release” – more on FOIA Mapper: https://foiamapper.com/annual-foia-reports-2015/

With this in mind, we can take the latest report’s finding of a government-wide FOIA release rate of 93.8% with a bucket of salt. The report says that this is “the tenth year in a row that the number of responses to FOIA requests where agencies provided a release of information either in full or in part exceeded 91% of the requests processed for a disclosure determination.”  What the report does not say is that OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases (see right for an example), and excluding requests denied (often improperly) over fees, referrals, “no records” responses, and requests “improper for other reasons.” A more accurate release rate calculated by the Archive and others hovers between 50 and 60 percent, and a closer reading of the OIP report puts that figure at 65 percent.

Other highlights from the report include:

  • The government received more FOIA requests than ever in FY 2018, totaling 863,729 requests.
  • Backlogged requests have shot up from last year, from 111,344 to 130,718.
    • My colleague Nate Jones notes in his must-read article, FOIA: A Colossus Under Assault, that in 2008 “the President of the United Statesinstructed every federal agency to reduce its FOIA backlog by ten percent every year. How many agencies followed this presidential order? Just a single one: the Department of Health and Human Services. If agencies had followed this presidential instruction, most if not all of FOIA backlogs would be eliminated and requesters could get their documents in a timely fashion. But as ninety-nine percent of agencies disobeyed a presidential instruction, no one from the White House, Congress, the DOJ Office of Information Policy, or the FOIA Ombuds Office chastised or prodded agencies, or analyzed why the president’s instruction was not followed.”
  • Processing time for the majority of “complex requests” (an arbitrary term that covers many straight-forward requests) takes between 100 and 120 days, with a decent percentage of “complex” requests taking over 400 days to process. The FOIA statute mandates a response be given within 20 business days, 30 if there is a good reason for an exception.
    • Remember, the 2016 FOIA Improvement Act mandates that if an agency misses its response deadline, it often can’t charge fees.
  • The appeals backlog is growing – up to 4,745.
    • Don’t let this deter you from appealing, though, as agencies release improperly withheld information on appeal at least a third of the time.
  • Litigation costs rose to roughly $40,800,000.
  • “By the end of the fiscal year, agencies reported collecting a total of $2,981,312.77 in FOIA fees. The FOIA fees collected in FY 2019 amounts to less than 1% of the total costs related to the government’s FOIA activities.” These fees are not recouped by the agency, but are instead deposited in the Treasury Department’s general fund, making it all the more frustrating to see agency’s use “fee bullying” techniques to intimidate requesters into dropping or unnecessarily narrowing their requests.

This year’s OIP summary report makes clear that agencies will need to embrace technology and proactive disclosure if they hope to escape the growing number of requests, backlogged appeals, and litigation, and OIP should be leading that charge rather than defending agencies’ FOIA practices at every turn.  If agencies are looking for guidance on how to move forward in the absence of true leadership from OIP, they should turn to the recommendations made by the FOIA Federal Advisory Committee, which includes instructions on how agencies should be proactively posting documents online and how to conduct more efficient searches — the key reason behind the years and decades-long processing delays.

FOIA Federal Advisory Committee Update

The FOIA Federal Advisory Committee’s 2018-2020 term held its most recent meeting today in the National Archives and Records Administration’s McGowan Theater, and the livestream from the event can be found here. The subcommittees on records management, vision, and time/volume all offered updates, and the University of Denver’s Sturm College of Law’s Margaret Kwoka delivered a presentation on who uses FOIA and what information they are trying to obtain. Kwoka’s findings show that the majority of FOIA requesters at certain agencies are commercial requesters seeking business information, or people seeking first-person information about themselves, which is information that could help those agencies identify which records requesters would benefit most from the agency posting proactively.

Tiananmen Massacre 30th Anniversary: Declassified Records Describe Attacks by Chinese Troops, Internal Official Debates, and U.S. Attempts to Keep U.S.-China Relations on Track

This week the Archive published a special exhibit on the 30th anniversary of the massacre at Beijing’s Tiananmen Square, 4 June 1989. The declassified documents selected for the exhibit demonstrate that U.S. embassy officials realized very quickly that the Chinese military had carried out a massacre ordered by top officials who feared the public expression of dissent. They also document the mixed U.S. response to the massacre, on the one hand, sheltering a protestor, and on the other, trying to keep open lines of communication with Chinese authorities and to maintain flows of U.S. investment. As part of an ongoing brutal crackdown of internal dissent, Chinese authorities have carried out a harsh policy of history suppression, forbidding on-line or other discussions of the events at Tiananmen Square. In light of that it is worth recalling what U.S.  government officials learned at the time and how they assessed Beijing’s response to internal dissent.

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