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Courts Can Force Agencies to Post Records in FOIA Reading Rooms: FRINFORMSUM 9/5/2019

September 5, 2019

USDA stopped making animal welfare reports public in 2017. Photo by Michael S. Williamson, The Washington Post, Getty Images.

Courts Can Force Agencies to Post Records in FOIA Reading Rooms

The Ninth Circuit Court of Appeals recently ruled that courts can force federal agencies to post records online to their FOIA reading rooms. This welcome ruling brings attention to the half-hearted attempts some agencies take to adhere to FOIA’s requirement that agencies post key records online, ensure that their websites provide citizens with detailed guidance on making information requests, and use new information technology to publish information proactively.

The Ninth Circuit case concerns the Department of Agriculture’s widely-criticized 2017 decision to remove animal welfare compliance data from its website on the grounds that the records risked revealing private information about entities the USDA regulated. The Justice Department’s Peter Bryce argued in court filings at the time that the Agriculture Department had no obligation to post animal abuse data on the department website in advance of FOIA requests, noting that, “Perversely, plaintiffs seem to suggest that such routine, proactive posting of records should itself trigger a mandatory legal obligation…thereby making such proactive disclosures legally obligatory (and, according to plaintiffs, irrevocable) once the records are posted to the agency website.” The Justice Department defended this position in court even though the FOIA clearly states (5 U.S.C. 552(a)(2)) that agencies are required to identify records, “that because of the nature of their subject matter… have become or are likely to become the subject of subsequent requests for substantially the same records,” and make them available in electronic format – in other words, post them on their website. This is why, prior to the Trump administration, the Agriculture Department had been following the clear language of the law and posting the databases that were widely used by the public. (The strong language in the FOIA is reinforced by the Federal Records Act (44 USC 3102), which states that each federal agency must have a records management program that establishes “procedures for identifying records of general interest or use to the public that are appropriate for public disclosure, and for posting such records in a publicly accessible electronic format.”)

The case was initially dismissed by U.S. District Judge William Orrick III, who found “courts lack power to force government agencies to make documents available to the public at large, as opposed to individual requesters, under the Freedom of Information Act.” A 2-1 ruling from the Appeals panel disagreed, arguing that if that were true, “An agency would have no enforceable duty to post its important staff manuals, or its interpretation of the statute it’s charged with enforcing, or its final opinions in agency adjudication.”

NYT FOIA Primer Highlights Increasing Importance of Litigation

“The processing of the request was highly irregular. The withholding was entirely unjustified … The document was probably withheld for political reasons.” This anonymous note was included in a response to a New York Times FOIA request, and highlights why many organizations, including the Times, Buzzfeed, the Washington Post, the National Security Archive, and many others, are increasingly turning to the courts to force agencies to properly release records in response to FOIA requests.

While litigation is increasingly important, it is not a resource available to every-day requesters and courts cannot be relied upon to fix how FOIA is administered. For an in-depth look at how to combat efforts to weaken the FOIA by those charged with enforcing it, read a piece by my colleague Nate Jones, FOIA: A Colossus Under Assault. Jones suggests a possible solution is an executive branch FOIA oversight mechanism similar to the Council of Inspectors General on Integrity and Efficiency.  “Why, after all, are Inspectors General usually feared and FOIA officers usually ignored or scoffed at?  Because, I believe, IGs have an oversight entity with clout backing them up so that they can receive the documents they require, meet their deadlines, and independently follow their charge as described by the law.”

EPA No Longer Accepting FOIAs by Email, Makes it More Difficult to FOIA Inspector General

The Environmental Protection Agency will no longer accept FOIA requests via email, and will now require requesters to either submit requests through postal mail or an online portal. NBC’s Scott MacFarlane noticed the change, tweeting an image of an automated response to his emailed FOIA request. The automated email states, “You submitted a request for EPA records using a method that is no longer authorized by EPA’s FOIA regulations.” Troublingly, the portal the EPA requires requesters to use if they don’t want to send their requests snail mail limits the number of characters a requester can use, and doesn’t allow requests to be submitted to the EPA’s inspector general’s office.

The Journal of Civic Information

The inaugural issue of the Journal of Civic Information – an “open-access, interdisciplinary journal that publishes peer-reviewed research related to the field of accessibility of public information” – is now available online. The journal is a project of the Brechner Center for Freedom of Information at the University of Florida, and the first issue has articles on “Access to Government Officials in the Age of Social Media,” Tracing Home Address Exemptions in State FOI Laws,” and more.

Guatemala Shutters Anti-Corruption Commission

Guatemala’s UN-backed anti-corruption probe, the International Commission Against Impunity (known by its Spanish acronym, CICIG) is officially closed. Outgoing Guatemalan president Jimmy Morales announced in September 2018 that he would not renew CICIG’s mandate (Morales and his National Convergence Front are under investigation by the Attorney General’s Office as a result of CICIG’s work), which the US has long-supported. CICIG’s anti-corruption victories included racking up over 300 convictions, which ensnared two former presidents who are now in jail as a result.

The Morales administration is also trying to close the country’s national police archives under the guise of national security concerns. More on those efforts here.

Police in the capital of Dili, East Timor, assault a civilian on August 26, 1999. Immediately after this photo was taken by Time Magazine photographer John Stanmeyer, the officers shot and killed the man. (Photo credit: John Stanmeyer, Time Magazine; posted on Iconic Photos)

U.S. sought to preserve close ties to Indonesian military as it terrorized East Timor in run-up to 1999 independence referendum

The U.S. government was aware for months that the Indonesian military had created, and was arming and directing paramilitary militias in East Timor in the leadup to the territory’s historic August 30, 1999, independence referendum, according to recently declassified documents posted by the Archive.  The documents provide an unprecedented window into U.S. policymaking and reporting in the aftermath of the May 1998 resignation of Indonesian President Suharto; the unexpected decision of President B.J. Habibie in January 1999 to suggest that East Timor would be allowed to vote on its political future after 24 years of Indonesian military occupation; the negotiations which led to the formation of the United Nations mission in East Timor (UNAMET); the months-long campaign waged by the Indonesian armed forces and its militia proxies in East Timor to terrorize the population and prevent it from voting for independence; and the systematic campaign of murder and destruction carried out by the Indonesian armed forces and its militia proxies in the wake of the referendum.

The newly released documents add to the significant declassified record on U.S.-Indonesia relations, which includes important materials the National Security Archive has posted on topics such as Indonesia’s occupation of East Timor and regime human rights abuses dating back to the mid-1960s. Read the rest here.

Cyber Operations in Context: A Look at Joint Task Force Ares

Join our Cyber Fellow Michael Martelle on September 16 at the Atlantic Council for a conversation about recent declassifications concerning the counter-ISIL efforts of JTF Ares and Operation Glowing Symphony. Martelle will be speaking with the Atlantic Council’s Dr. Trey Herr and Pete Cooper, the U.S. Military Academy’s Audrey Alexander, the Naval War College’s Dr. Nina Collars, and the Marine Corps Forces Cyperspace’s Command’s Riley Jennifer.

Register for the event here, or watch the livestream here.

#TBT Pick – “Cogs of War”

This week’s #TBT pick is chosen with Harper’s Magazine’s recent publication of Anatoly Chernyaev’s December 30, 1979 diary entry, which was translated into English and published for the first time earlier this year by the Archive. The Archive published the English translation of Chernyaev’s 1979 diary to commemorate what would have been his 98th birthday; the selections trace “the further decline of the top Soviet leadership, the widening gap between standards of living in the West and the Soviet Union, and the disastrous decision to invade Afghanistan.”

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