The FOIA Watchdog chats with Lucy Dalglish, director of the Reporters Committee for Freedom of the Press, and Jennifer Lynch, staff attorney for the Electronic Frontier Foundation, about this year’s pressing FOIA issues.
How has the Obama administration’s handling of FOIA issues differed
from that of the Bush administration?
Lucy Dalglish: The Obama administration at least says the right things. But there’s somewhat of a disconnect between what we consider to be “transparency” and what they think that means. The White House is supportive of efforts to release “high value data sets” and other records that can be used by private industry to make money or to provide statistical information. They love technology. But we don’t have reporters calling us to say: “Help! I’m having trouble locating a high-value data set!” Rather, they’re looking for info that would help them engage in oversight of government operations. They’ll tell us: “Help! I know the government has this ONE particular document(s) that will help me with my story, but they’re citing exemption after exemption as to why I can’t have it.” So in that respect, there’s not much change.
Jennifer Lynch: It’s hard to figure out how to say this, but it often feels like the way that the Obama administration is handling FOIA requests is worse than the Bush administration. And it’s hard to know if that’s because we were so excited by Obama’s and Holder’s statements on transparency at the beginning of the administration—then it was business as usual. In my opinion, there definitely hasn’t been any change. It hasn’t gotten any better. The Obama administration has held on to a lot of the justifications that the Bush administration used to withhold records. The agencies are still applying the exemptions pretty liberally to try to withhold as much information as they can.
What’s been the most surprising part of your organization’s FOIA-related work as of late?
Dalglish: There are a couple of things going on that are quite alarming. The number of states that are trying to put government-employee e-mail off limits continues to escalate. Also, there are a number of states that are suddenly revising their open records statutes because of perceived problems with alleged “academic freedom” issues at publicly funded colleges and universities. Most states already have adequate protections for appropriate academic research. We’ve been watching this one for the past year. The hysteria from professors has never made sense to me. If professors are being punished for the content of their research, just make it illegal to discipline/punish a professor based on the content of their research. Don’t hide the public documents related to the research.
Lynch: Recently we’ve seen a couple agencies that have responded in ways that we never saw before with the Bush administration. So, for example, with the Department of Homeland Security, we have a court-signed stipulation that the agency will treat us [the EFF] as the news media requester. We’ve just had a big runaround with ICE [Immigration and Customs Enforcement] that lasted probably two months where ICE refused to treat EFF as a news media requester. They were even insinuating that the way that the Department of Homeland Security responds to FOIA request is not necessarily the way that ICE responds to FOIA requests. So, they were not recognizing that they are under the DHS umbrella. That was sort of odd. Another thing that we’ve seen come up recently is that the FBI has responded to our FOIA requests, and a few other FOIA requests by other organizations, by claiming that the material that is responsive to the FOIA request is outside the scope of the FOIA request! Instead of claiming one of the nine exemptions to withhold or release material, they’re taking this weird approach and action. Those are two things that I never even saw during the Bush administration.
Any thoughts on the EPA’s proposed FOIA module/ portal?
Dalglish: It’s an impressive effort. More agencies should be encouraged to be innovative in this way. (Although it’s not a surprise, because several EPA lawyers are former RCFP legal fellows!)
Lynch: There’s a lot more that the government can do to make responding to FOIA requests quicker and easier. Unfortunately, a lot of that needs to happen on the back end. It needs to happen in how agencies store records and process records even before they respond to a FOIA request.
Why do we need a new FOIA module if we also have the new OGIS FOIA site?
Dalglish: If by FOIA module you mean the “dashboard” under development by OIP at the Justice Department, I think they’re different animals. But, that said, I think everybody would be much better served if the Justice Department got used to the idea that OGIS is here to stay. There’s lots of intrigue going on there. I’ve always believed that Justice Department officials in charge of FOIA are angry because they believe the creation of OGIS took away some of their power. I get that. You know what? The creation of OGIS was intended to shift total control of FOIA from the Justice Department. That was the point.
Lynch: I think www.foia.gov was good or is good for what it is, in the sense that it was intended to be a central site where you could get a lot of statistics on FOIA requests, how agencies process them, and where to file FOIA requests. So, in that sense, it’s definitely a step forward from what we had before, when you had to go to every individual agency’s website. It doesn’t go very far in helping the FOIA requester in the sense that the EPA’s portal apparently will allow you to file your FOIA requests online, and let you can track them. Foia.gov certainly doesn’t let you do that.
Anything new with the OGIS recommendations in the OMB?
Dalglish: Not that I’ve heard.
Lynch: I don’t know what’s going on with that OGIS. We have never used OGIS, because if we don’t get a response to our FOIA requests, we tend to sue the agency.
What should the federal government be doing better in terms of FOIA issues?
Dalglish: There are so many things on this list, I can’t count them all. But here are a few ideas: 1. Assume that FOIA is just a cost of doing business and make it easier for agencies to spend money on it. 2. Invest in the technological infrastructure. (In this regard, the Obama folks aren’t too far off.) If you assume that when a document is created it is going to be available, you can have more of an affirmative “post it” system in place, versus a “hunt in the archives, photocopy, and mail it” system. And, to be fair, the requests the Reporters Committee have made in the last couple of years have been responded to much more quickly and thoroughly than just five years ago.
Can you shed any light on OGIS director Miriam Nesbit’s diplomatic lack of response, when asked by Sen. Leahy at the March 13th Senate Judiciary Committee meeting, about which federal agencies are the worst in processing FOIA requests?
Dalglish: I have no first-hand knowledge regarding this question. But my gut feeling is that one of two things may be going on: Ms. Nisbet feels she can’t afford to alienate anyone in the agencies right now, particularly as she’s trying to set up some mediation services with them. Or, this information may also be in the report that OMB refuses to release. She may be under orders to let her report speak to this issue, and it’s being held up. But, obviously, she does not feel she can speak freely. Miriam is a skilled public servant, and a lovely person, so it pains me to watch this whole thing.
Lynch: I don’t know how much of it is Miriam’s personality. I think she’s an incredibly diplomatic person, personally, and so it could just be that it’s who she is. It could also be that OGIS’s role has been to be a sort of a mediator for FOIA disputes, and I think if you’re acting as a mediator and you don’t have any real authority to make an agency do anything, then the last thing you want to do is to upset anybody. So that’s how I might read that, I’m not sure.
Any important FOIA-related issues or advocacy on your radar this year?
Dalglish: I have a hunch the political conventions and the NATO Summit are going to keep us hopping. We’ve seen an astonishing number of reporters and photographers arrested for doing their jobs recently. We recently published this pullout to provide guidance to journalists on how to handle themselves at protest scenes, and what to do if they get arrested. As always, we’ll have our volunteer local lawyers on the ground to assist journalists in Chicago for the NATO Summit and in Tampa and Charlotte for the political conventions.
Lynch: We’ve got an ongoing lawsuit against the FAA for information on its Drone Authorization Program. I’m really interested in these “outside the scope” denial actions that the FBI is using. We’ve just filed a summary judgment motion in one of our cases challenging this, and I’m interested to see what’s going to happen. I don’t know how much of the DOJ and DEA’s responses are driven by FBI The FBI has been trying to push Congress to expand the Communications Assistance to Law Enforcement Act (or COLEA) for a long time, and has worked with other agencies to do that. I don’t know if the FBI is behind these actions or what.