US FOIA Advisory Committee considers recommendations to part the rising curtains of secrecy

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Government secrecy, as measured by censorship or non-responsiveness under the Freedom of Information Act, is at an all-time high during the Trump administration. The Freedom of Information Act is getting worse under Trump for a variety of reasons. Continued secrecy – including to cover up mistakes, fraud, waste, abuse, corruption or regulation – is literally costing taxpayers money: the number one cause of FOIA lawsuits is that agencies simply don’t respond to requests.

On Friday, December 6, the United States Freedom of Information Act (FOIA) Advisory Committee met at the National Archives in DC to discuss draft recommendations to improve how federal agencies are implementing one of the nation’s most important transparency laws.

The committee, which is composed of equal numbers of advocates and experts from civil society and FOIA officers from across the federal government who serve 2 year terms, has been meeting since 2014, when it was established as part of the second United States Open Government National Action Plan and a directive in the amended FOIA, 5 U.S.C. § 552(h)(2)(C), that the Office of Government Information Services (OGIS) within the National Archives and Records Administration (NARA) “recommend policy changes … to improve” FOIA administration.

The committee’s work is to identify challenges that exist with the FOIA and then to issue official recommendations to improve FOIA at the end of each term, like 2014-2016 term.

To accomplish this goal in the current term, the committee has broken out into three subcommittees — Records Management, Time/Volume, and Vision – which have been drafting recommendations for 2020. In the links below, from the committee website, you can find the materials the committee discussed on Friday, along with the agenda and Federal Register Notice.

 

 

I attended and shared analysis of the meetings in real-time on Twitter in a thread, embedded below:

You can watch the entire three hour meeting, which was open to the public and livestreamed online, in the video also embedded below, followed by three approaches to improving FOIA that agencies could adopt right now.

Dedicated digital services would reduce FOIA demand

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One of the common sense reforms that agencies could adopt without requiring Congressional action are dedicated digital services for people requesting their own records under the FOIA, particularly veterans and folks in the immigration system.

As Ryan Law, the Treasury Department’s FOIA public liaison noted on Friday, the US government has taken steps to disclosure records previously requested under FOIA, like tax records. Proactive disclosure through secure, authenticated digital services for these kinds of records make sense – and would save a lot of time and cents over the years, too.

“Release to one, release to all” remains in limbo

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The US government can and does release records responsive to a FOIA request directly to the public – as opposed to only to a requestor – when it wants, but it is not required to so under an established policy or legislative mandate unless the records are subject to three of more separate requests.

So what happened to the “release to one, release to all policy” for the Freedom of Information Act that the Department of Justice (DoJ) took public comment on in 2016?

It’s still stuck in limbo.

Three years after President Obama directed the DoJ to “develop a Federal Government policy establishing a “release to one is a release to all” presumptive standard for Federal agencies when releasing records under FOIA,” it is still “under consideration, according to the acting director of the Office of Information Policy (OIP) at the DoJ, which is charged with ensuring compliance with FOIA across the federal government.

While former Office of Information Policy Director Melania Pustay answered years of questions on this issue at this public meeting, she always demurred with respect to committing to publish a policy. The Department of Justice has still never formally responded to a petition that I co-authored in writing.

On Friday, the acting director of OIP, Bobak Talebian, said that during the 2016 pilot, the DoJ identified challenges, which the committee has since examined & found still exist. Talebian said the OIP is still very much in favor of the policy of proactive disclosures, but didn’t commit to issuing the policy. Another member of the council, Bradley White, the senior director for FOIA litigation, appeals, and policy at U.S. Department of Homeland Security, raised questions about who pays for storage and the burden on the agency.

The FOIA Advisory Council’s subcommittee on a vision for FOIA indicated that one of its recommendations will be the adoption its policy, if it can overcome these concerns, but the council’s influence on the DOJ’s actions has been limited in this administration. It may well require an act of Congress to make such a policy mandatory as part of legislative reforms in 2020.

The White House should be driving improvements in FOIA across government

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In December 2016, President Obama also ordered the White House Office of Management and Budget (OMB) to make FOIA a “cross agency priority” goal. Unfortunately, the Trump administration removed the Cross Agency Priority Goal for FOIA on Performance.gov without notice.

An administration that’s serious about improving public access to our records and being good stewards of taxpayer dollars and public information would restore said goal, perhaps as a commitment in some sort of comprehensive “national action plan on open government.”

While the FOIA Advisory Committee is full of people working in good faith to improve how sunshine in government works for the public, this administration has reversed or neglected many of the open government policies or programs of the past decade and weaponized transparency through selective disclosures.

As has been the case for years, it falls to Congress to perform oversight of the FOIA and ensure that public access to public information continues to improve through implementation of the FOIA reforms President Obama signed into law in December 2016 and the open government bill President Trump signed into law in January 2019.

 

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