News Media for Open Government works to strengthen and defend the federal Freedom of Information Act (FOIA).
We're focused on encouraging implementation of the 2016 FOIA reforms enacted after NMOG members worked together to help win enactment of the FOIA Improvement Act of 2016. For more, check our Fix FOIA by 50 Clearinghouse.
Full implementation of the 2016 FOIA Improvement Act, including:
- Applying the presumption of openness.
- Greater independence for the FOIA Ombudsman.
- Building a FOIA Portal to improve the FOIA process.
Posts on FOIA
On Tuesday, July 23, 2019, Senators Charles Grassley (R-IA), Patrick Leahy (D-VT), John Cornyn (R-TX), and Diane Feinstein (D-CA) introduced the “Open and Responsive Government Act of 2019,” which seeks to reverse the United States Supreme Court’s decision in Food Marketing Institute v. Argus Leader Media, which unnecessarily broadened what is deemed “confidential” under Exemption 4 of the Freedom of Information Act (FOIA). In support of the bill’s introduction, the News Media for Open Government (NMOG) made the following statement:
On Monday, June 24, 2019, the United States Supreme Court issued a 6-3 decision in Food Marketing Institute v. Argus Leader Media. In response, the News Media for Open Government (NMOG) has made a statement, which you can read here.
2019 Sunshine in Government Award Given to House Oversight Chairman Elijah Cummings for His Leadership in Strengthening FOIA and Open Government
As our nation celebrates Sunshine Week, News Media for Open Government is pleased to honor House Oversight Committee Chairman Elijah Cummings (D-Maryland) as the 2019 recipient of the Sunshine in Government Award for his leadership and commitment in fostering openness in government that better serves our nation’s citizens. The award was announced on March 8th at the Newseum Institute’s Freedom of Information Day Conference in Washington, D.C.
The Sunshine in Government Award was created to honor individuals who have made a significant contribution over time to open government at the federal level. “Throughout his career, Chairman Cummings has worked on a bipartisan and bicameral basis to write a clear presumption of openness into the law,” said Coalition Director Melissa Wasser. “He has also spent countless hours pushing back on overbroad and unnecessary proposals to create new FOIA exemptions. Chairman Cummings continuously demonstrates a strong commitment to transparency, even on the most difficult of topics.”
The Office of Government Information Services today issued its first advisory opinion on a FOIA matter. Today’s advisory opinion, and the many we hope will follow, is important for OGIS to help prevent and resolve disputes and make FOIA work better.
The purpose of advisory opinions is to provide clear direction to agencies and requesters on how FOIA’s requirements should be interpreted to prevent future disputes, similar to the way the Office of Government Ethics makes public its advice to agencies and government employees who request OGE’s help interpreting ethics laws.
Back when we were advocating for the creation of OGIS before 2007, News Media for Open Government (back then called the Sunshine in Government Initiative) saw advisory opinions as a key tool for the FOIA Ombudsman to call balls and strikes, and to create a record for courts, agencies and requesters to guide the way FOIA should work.
The advisory opinion issued today gave advice to agencies on ensuring requesters have good ways to contact the agency to follow up on a request. This is not a controversial topic. By issuing an advisory opinion, however, OGIS is signaling to agencies that agencies should pay attention. Future opinions should provide clear interpretations of FOIA on disputes, controversies, or practices that run counter to FOIA’s requirements.
Eleven years later, after many bureaucratic obstacles were thrown in its path, OGIS is taking an important step towards fulfilling our vision for how OGIS can help FOIA work as strongly and effectively as it can.
The revised draft of the Border Security for America Act of 2017 (H.R. 3548), to be considered by the House Homeland Security and Government Affairs Committee as soon as today, would shield from public scrutiny and accountability ongoing law enforcement activities along the border. The Freedom of Information Act is one of dozens of laws that would not apply to border activities, including construction and maintenance of the border wall and ongoing efforts to stop illegal border crossings.
As Kevin Goldberg writes for the American Society of News Editors (an NMOG member), the impact would be broad:
The public and press would be in the dark with regard to CBP activities near the border. We wouldn’t have access to records of arrests, injuries, deaths and other major incidents at the border or the costs of securing the borders, including the cost and other details of building a border wall. The CBP would be able to run wild and without oversight for the most part.”
Two aspects to this proposal are highly problematic.
First, the current legislation, sponsored by House Homeland Security and Government Affairs Committee Chairman Michael McCaul, fails to clearly mark the bill as a proposed exemption to the federal FOIA, as Congress itself required under the OPEN FOIA Act of 2009. That law requires that future proposed exemptions written into law be clearly marked as such by mentioning subsection (b)(3) of FOIA (5 U.S.C. 552), the subsection of FOIA that acknowledges other laws may supersede FOIA’s disclosure requirement.
Second, the legislation would cut out important stories themselves about border enforcement efforts. FOIA can be crucial to covering important stories about immigration, the border and the U.S. Customs and Border Protection (CBP) itself. For example, Philip Bump writing in 2013 for The Atlantic Wire used FOIA to obtain CBP requirements for drones used to patrol the border. His FOIA request showed the CBP’s drone requirements included the capacity to carry “non-lethal weapons designed to immobilize” targets. CBP claimed it had no plans to arm its drones with weapons, but clearly CBP ensured its design requirements allowed CBP to do so.
In a separate story, in 2010 The Associated Press (a member of our coalition) published a story based in part on FOIA that documented a rise in suicides among border patrol agents.
Border patrol activities continue to be of substantial public interest. Note this story from July 2017 detailing the interaction between border agents and a schoolteacher who refused to answer a question about her citizenship status, or the fact that in September 2017, the American Civil Liberties Union and Electronic Frontier Foundation filed a lawsuit challenging the constitutionality of border searches conducted by CBP and Immigrations and Customs Enforcement (ICE).
Perhaps the bill’s sponsors did not consider or did not intend for the bill to have such ramifications for public oversight of our nation’s borders, but that’s exactly what’s at stake.
When Congress improved FOIA last year, it built in some growing pains for the Office of Government Information Services (OGIS). Today, we’re seeing those pains in longer than usual waits for replies from OGIS. The office has reportedly been inundated with requests for assistance as FOIA requesters navigate FOIA. In response, they’ve had to triage the Office’s response to help requests. OGIS was never intended to add another level of waiting to the FOIA process, but FOIA reformers in Congress knew growing pains were inevitable.
To fulfill its mission, OGIS will have to become bigger than its current size to provide assistance to requesters over the 100-agency bureaucracy subject FOIA and smarter in focusing on systemic problems with FOIA implementation through the use of advisory opinions and other ways of addressing long-standing shortcomings in agency FOIA efforts. We’ve long reminded anyone who’ll listen that OGIS’s original budget of around $1 million was a mere down payment by Congress on creating an effective mediator and advisor to make FOIA work better. (In fact, Congressional Budget Office scored OGIS as needing around $6 million annually.)
To be a more assertive, independent, and effective force for improving the system, OGIS needs active support from within the National Archives and Records Administration (NARA), Congress and outside groups to make that vision a reality.
How can journalists help? If you’ve used OGIS and find it useful, share your experience! If you requested help but hoped for more, let your readers know! Tweets using #FOIA to vent frustrations or applause. Anecdotal evidence of success and shortcomings helps NMOG member groups make the case to make FOIA better for journalists and the public. (And remember, journalists account for a small fraction of FOIA requests, so this is a problem that affects your audience.)
Defense Department is hoping the third time’s the charm as it once again asks for the authority to withhold from the public certain military tactics, techniques and procedures , the disclosure of which would give an adversary an advantage. The proposal (Sec. 1003 of DoD’s draft legislation), which the Defense Department would like included in the defense authorization bill for fiscal year 2018, is narrower than proposals it has put forward the last two years.
Previous proposals would have allowed the Pentagon to withhold anything “relating to” such tactics, techniques and procedures. That broad, vaguely worded language could have allowed the Defense Department to hide information held by the government on widely covered problems such as mis-wired showers electrocuting soldiers on military bases, sexual assault in the military, friendly fire incidents at checkpoints (such as the one that killed former NFL star Pat Tillman), and more, as our coalition argued last year in testimony to the Senate Judiciary Committee at a hearing celebrating FOIA’s 50th anniversary.
One of the more confounding aspects to our work monitoring and addressing threats to open government is trying to read legislative text and understand the intent behind it. Those who propose secrecy statutes — legislation that would create a carve-out exempting information from disclosure under FOIA — oftentimes do so without adequately explaining what information they think they are protecting, why they need to protect it and why existing legal protections are inadequate.
Since the Supreme Court said in 2011 that agencies could no longer deny FOIA requesters on the grounds that such disclosure could allow someone to circumvent laws or regulations, we have trying to understand what agencies, the Defense Department in particular, are afraid could be disclosed and cause harm.
Last month, representatives of the Defense Department met with congressional staff and representatives of outside groups to discuss the proposed exemption and to hear why the Defense Department feels it needs the exemption.
We discussed the distinction between the tactics, techniques and procedures that soldiers are trained to implement in the field and the need for the public at times to have factual accountings of events. There appeared to be agreement in concept that factual information about events that happen should not be covered by any new exemption from disclosure, but specific training on techniques and battlefield tactics if disclosed may endanger troops.
Reflecting that sentiment in writing could prove a challenge, but the fact that such a meeting took place — where we could ask questions, hear what the Defense Department hoped to accomplish, raise some of our concerns, and listen is a step forward in the effort to draw better lines where our democracy’s presumption of disclosure ends and the need for secrecy begins.
Rep. Pete Sessions (R-Tx.) has introduced legislation that appears to allow cosmetics manufacturers to keep product complaints reported to the federal government secret. The legislation (H.R. 575), appears to allow the executive branch wide latitude to determine through regulation what agencies must require manufacturers to disclose publicly.
“(g) List.—The Secretary shall compile and maintain an up-to-date and publicly available electronic list of cosmetics and ingredients for which statements are submitted under this section. A statement submitted pursuant to this section shall not be subject to disclosure under section 552 of title 5, United States Code. The Secretary may make publicly available information derived from such statements that discloses the names of ingredients used in cosmetics and the number of cosmetics in which a specific ingredient is used, but may not make publicly available any information that relates to any ingredient that is exempt from public disclosure under section 720.8 of title 21, Code of Federal Regulations (as in effect on the date of enactment of the Cosmetic Modernization Amendments of 2017 and including any successor regulations), or that discloses at what establishment a cosmetic is manufactured. At the written request of the director of a State agency responsible for regulating the safety of cosmetics stating good cause therefor, the Secretary may disclose to such official confidential business and trade secret information contained in a statement and such official and other State employees who have access to such information shall then be subject to the provisions of section 301(j) of this Act, section 552(b) of title 5, United States Code, and section 1905 of title 18, United States Code, with respect to such information.
“(h) Exemptions.—Submission of a statement under subsection (a) shall not be required—
“(1) for a cosmetic for which as of the date of enactment of this section a cosmetic ingredient statement has been submitted to the Secretary under part 710 of title 21, Code of Federal Regulations (as in effect on the date of enactment of the Cosmetic Modernization Amendments of 2017);
“(2) for a cosmetic ingredient exempt from public disclosure under section 720.8 of title 21, Code of Federal Regulations (as in effect on the date of enactment of the Cosmetic Modernization Amendments of 2017 and including any successor regulations); or
“(3) by an entity to the extent such entity is exempted by section 605(e) from registration under section 605.”.
SEC. 6. SERIOUS AND UNEXPECTED ADVERSE EVENT REPORTING FOR COSMETICS.
(a) In General.—Chapter VI (21 U.S.C. 361 et seq.), as amended by sections 3, 4, and 5, is further amended by adding at the end the following:
“SEC. 607. SERIOUS AND UNEXPECTED ADVERSE EVENT REPORTING FOR COSMETICS.
“(a) In General.—The Secretary shall by regulation require that a domestic or foreign manufacturer, packer, or distributor whose name appears on the label pursuant to section 602(b)(1) of a cosmetic marketed in the United States submit to the Secretary under subsection (b) a report containing—
“(1) information received concerning any serious and unexpected adverse event in the United States allegedly associated with the use of the cosmetic for which it is reasonably likely that the adverse event was caused by the cosmetic when used as recommended or suggested in the labeling; and
“(2) a copy of the label for the cosmetic.
“(b) Submission Of Reports.—A report on an adverse event under subsection (a) shall be submitted to the Secretary not later than 15 business days after information concerning the adverse event is received at the place of business labeled on the cosmetic pursuant to section 602(b)(1).
“(c) Required Contents.—A report under subsection (a) shall include all of the following information:
“(1) An identifiable patient.
“(2) An identifiable reporter.
“(3) A suspect cosmetic or component thereof.
“(4) A serious adverse event.
“(d) Additional Contents; Supplemental Reporting.—The person submitting a report under subsection (a) may—
“(1) include pertinent information in addition to the information listed in subsection (c); and
“(2) after submitting the initial report, supplement the report with additional information.
“(e) Special Rules.—
“(1) PROTECTED INFORMATION.—A serious and unexpected adverse event report (including all information submitted in the initial report or added later) submitted under subsection (a)—
“(A) shall be considered to be a safety report under section 756 that is subject to the provisions of that section; and
“(B) shall be considered to be a record about an individual under section 552a of title 5, United States Code, and a medical or similar file the disclosure of which would constitute a violation of section 552 of such title 5, and shall not be publicly disclosed unless all personally identifiable information is redacted.
Legislation approved on January 12 by the full House of Representatives to reauthorize the Commodity Futures Trading Commission (H.R. 238) contains an exemption to disclosure under federal FOIA for information CFTC may “asertain” regarding complicated trading structures known as commodity pools and client accounts. As introduced, the legislation required that the information be treated as investigative material. CFTC could publish aggregated information the disclosure of which would not identify “any person or firm, or such person’s proprietary information.”
On its face, the exemption appears to cover a broad amount of information, including:
“(A) the commodity trading advisor, commodity pool operator or the trading strategies of the commodity trading advisor or commodity pool operator;
(B) analytical or research methodologies of a commodity trading advisor or commodity pool operator;
(C) trading data of a commodity trading advisor or commodity pool operator; and
(D) computer hardware or software containing intellectual property of a commodity trading advisor or commodity pool operator”
The Senate will next consider legislation reauthorizing the Commission. According to CQ-Roll Call.com, the Senate passed a different version of the legislation last Congress and the House and Senate could not work out their differences.
The incoming Trump administration has a narrower window for affecting how agencies implement their obligations under the federal Freedom of Information Act (FOIA) than previous presidents, however each administration sets the tone for disclosure decisions in cases where agencies have discretion.
With the enactment of the FOIA Improvement Act of 2016, Congress wrote into law an explicit requirement that agencies disclose information requested under FOIA unless they foresee a harm to a protected interest, such as national security or personal privacy. While the new administration cannot change the presumption of openness by executive action alone, it can influence what agencies do (or don’t do) when they receive a FOIA request.
Attorney general nominee Jeff Sessions will likely face questions on FOIA and other topics affecting open government during two scheduled days of confirmation hearings in the Senate Judiciary Committee starting on Tuesday, January 10.
In recent years groups inside and outside of government have created new tools for FOIA administration, such as iFOIA, MuckRock, and FOIA Machine. In addition, the federal government built its own FOIAonline. Local governments, too, are getting into the game.
Many years ago we extolled the virtues of agencies building a system to more efficiently receive, track, process and respond to FOIA requests. And Congress included a portal requirement in legislation in FOIA Improvement Act of 2016.
FOIA Tools Inside Government
FOIA.gov (built and administered by the Department of Justice Office of Information Policy) currently provides an introduction to FOIA, tutorials on the finer points of making requests, and the annual statistics that agencies compile each year showing how well or not they are keeping up with the volume of FOIA requests, costs, and the use of exemptions. FOIA.gov was not developed to track requests, manage communications or provide responsive information.
FOIAonline was built by the Environmental Protection Agency as re-use of its existing regulations.gov system. “From FOIAonline you can submit FOIA requests to all participating agencies, track the status of requests, search for requests submitted by others, access previously released records, and generate agency-specific FOIA processing reports,” according to the website. When it was first created, it was a novel approach to build a system once that multiple agencies could use to address common challenges. As new agencies came on board, any add-ons developed for that agency became shared with every other agency. About a dozen agencies or parts of agencies now participate.
Commercial systems. Many agencies rely on commercial off-the shelf (COTS) systems such as FOIAxpress to provide their FOIA processing systems from request to response.
FOIA Tools Developed Outside Government
Outside groups have built tools to make using FOIA easier on the public. Years ago, the Reporters Committee for Freedom of the Press (disclosure: RCFP is an SGI member and hosts SGI staff) built a FOIA Letter Generator to walk requesters through how to address fees, the format of information sought, and other finer procedural points in a request letter. That tool was widely used by journalists and others.
More recently, RCFP’s iFOIA allows anyone to make and track multiple FOIA requests to any agency. FOIA Machine also helps requesters make and track FOIA requests. And MuckRock helps requesters find material previously released under FOIA, submit new requests and track pending requests.
None of these relatively new FOIA systems provides full functions of a portal the way we envision it. That’s too bad, because such an Amazon-for-FOIA system could clear the desks inside agencies, newsrooms, lawfirms and individual citizens of piles of FOIA processing pain.
What we want
Our vision of a FOIA portal is an electronic system that helps both requesters and agencies use FOIA. A FOIA portal manages the lifecycle of a FOIA request from start to finish. A portal allows requesters to make, track and receive responses to FOIA requests. A portal allows agencies to receive and process requests, coordinate communication between agencies and requesters (including mediation requests with the Office of Government Information Services), manage procedural issues (e.g., fees, appeals) and provide responsive documents.
It can be centralized as a single system or decentralized as a confederation of separate systems that communicate with one another in machine-readable formats.
Here’s how we described our vision of a portal in 2011:
This system would create a centralized, electronic system that would allow anyone with a computer to make a FOIA request, route the request to the right agency and subcomponents within agencies, track the request through the research and review processes, and allow public disclosure of authenticated information to the requester and the public.
The portal should be software-independent and include standards for interoperability. When one agency uncovers in its files potentially responsive documents from another agency and refers those documents to the second agency for review, agency personnel should be able to transfer the request with one click. It should include a search function to allow requesters and agencies to locate responsive records that have already been released.
Finally, a portal should make the FOIA process more transparent. A portal should include publicly available metrics in real time or nearly real-time on the workflow of a particular request through various processing milestones. Such reporting could include naming the offices responsible for taking action on a FOIA request and their processing history, and agency snapshots, including wait times and other metrics.
Such transparency would provide insight into the bottlenecks, clues into processing problems and accountability to agency offices that have a hand in responding to FOIA requests like never before.
We and others have been talking about this idea for a long time. The Associated Press then-President and CEO alluded to it in testimony before the Senate Judiciary Committee in 2007:
You know, if Brown [UPS] can do it, Red, White, and Blue should, too.
Unfortunately, the 2016 FOIA amendments do not require the U.S. government to build a fully functioning portal, only a system for agencies to accept requests. A request-only system will not help end the procedural dead-ends and lost-in-the-mail problems plaguing requesters, including journalists, trying to use FOIA to gain timely disclosures.
Congress and the executive branch should embrace the goal of creating more robust FOIA processing system that should provide much-needed insight into the FOIA process, what works and does not, and what changes will make FOIA work better.
Note (4/25/2017):This post was edited slightly to reflect passage of the 2016 FOIA Improvement Act, fix typos and correct links.
A panel of witnesses told the Senate Judiciary Committee that technology and better records management were keys to improving the Freedom of Information Act. SGI Director Rick Blum pointed to several stories relying in part on FOIA that helped change government action or otherwise make an impact in communities. The hearing was a chance to celebrate enactment of the Freedom of Information Act Improvement, signed into law on June 30, 2016. Also testifying from the media perspective was Professor Dave Cullier on behalf of the Society of Professional Journalists.
Blum told the Committee that the government should better manage its records.
Amazon does not store goods piled in boxes in its warehouses. It catalogs the row and shelf location for each item so retrieval is efficient enough to have a box on my doorstep in two days. Digital storage and retrieval should speed government responses, not complicate and slow it down.
Read the rest of SGI’s testimony here.