Tag Archives: FOIA

Freedom of Information Act – Value In Our Times

Freedom of Information Act Slideserve dot com

Image:  Slideserve.com


“Danielle Brian, executive director at the Project On Government Oversight:

“An Inspector General shouldn’t have to rely on congressional pressure and media attention to publicly release its unclassified findings. We’ll be closely watching DHS and other agencies for future attempts to muzzle their watchdogs with overreaching secrecy claims.”

“The Project On Government Oversight (POGO) and Open the Government (OTG) applauded the release today of a report by the Homeland Security Administration’s Inspector General that critiqued the Trump Administration’s handling of its controversial travel ban that caused chaos and protests across the nation in January 2017. The release of the redacted report came just two days after POGO and OTG filed an appeal after their Freedom of Information Act (FOIA) request to access the report was blocked.

“This is a huge win for transparency and for the public’s right to know about how the travel ban was implemented on the ground,” said Open the Government’s Executive Director Lisa Rosenberg. “The release of the report is a testament to the pressure from the public and Congress to ensure accountability by bringing the full truth into the light of day. We are continuing to call on the administration to release information still being withheld on this policy, and account for the continued secrecy related to this report.”

After we filed our appeal, the DHS OIG quietly posted a redacted version of the report on its website, providing no explanation for the redactions or for the initial FOI denial. The DHS also failed to indicate the justification for the withholdings, in apparent violation of the FOIA.

“We’re pleased that this watchdog report is finally is seeing the light of day, but remain concerned that the Department’s redactions may go too far,” said Danielle Brian, executive director at the Project On Government Oversight.

In response to our initial FOIA request, the DHS OIG sent a letter on December 28th, 2017, denying full access to the report, claiming the report addressed matters that were ongoing, and invoked the discretionary deliberative process privilege. In response to the IG’s decision, POGO and OTG filed an appeal arguing that the report in question is final and therefore is inherently post-decisional and cannot be considered either pre-decisional or deliberative, no matter how many ongoing matters it may become a part of after completion.

Our appeal asked for another review of the report, immediate processing and urgent release of the full report, including all conclusions regarding the implementation of President Trump’s travel ban.

The DHS OIG apparently agreed with our argument, quietly releasing a public version of the report the day after we filed our appeal.

The redacted version released yesterday includes some of the important findings, notably that the DHS was “caught by surprise,” by the signing of the EO, and that the main implementer of the EO’s provisions – Customs and Border Protection (CBP) – had “practically no advance notice that the order would issue, or that it would be effective upon signature. Nor did it know exactly what the EO would contain.”

Importantly, the report concludes CBP violated two separate court orders that enjoined CBP from preventing affected travelers from boarding aircraft bound for the United States.

These conclusions were described by the former Inspector General John Roth in a November 20th letter sent to Congress, in which he warned that the Department was going to invoke the “deliberative process privilege” to keep the content of the report secret. Roth’s warnings proved to be accurate, and the DHS is still withholding information in the report about potential violations of court orders and other abuses associated with the implementation of the EO. The DHS must now respond to our appeal, review the redactions made, and provide its justification for the continued secrecy in accordance with the FOIA.

Read the redacted report here, the response letter sent to POGO/OTG from the DHS IG, here, and our appeal, here.

Open the Government is an inclusive, nonpartisan coalition that works to strengthen our democracy and empower the public by advancing policies that create a more open, accountable, and responsive government.

The Project On Government Oversight is a nonpartisan independent government watchdog whose investigations into corruption, misconduct, and conflicts of interest achieve a more effective, accountable, and ethical federal government.”




The “Freedom Of Information Act” (FOIA) Turns 51 Years Old

flag_and_fireworks_575 FOIA Photo biy US Dept. of Transportation

 Photo by US Dept. of Transportation


“What Is It and Why Does It Matter?”

“Happy birthday to the Freedom of Information Act! Originally enacted in 1966, FOIA created a way for all citizens to obtain information from the federal government.

It requires federal agencies to release any requested information that is not covered by its nine exemptions, and requires agencies to make basic information about their policies available to the public.

The FOIA Improvement Act included some great updates to the landmark access-to-information law, like improved requirements for agencies to proactively post documents online and a new standard of transparency.

But what is FOIA?

Originally enacted in 1966, FOIA created a way for all citizens to obtain information from the federal government. It requires federal agencies to release any requested information that is not covered by its nine exemptions, and requires agencies to make basic information about their policies available to the public. FOIA is a tool commonly used by researchers, historians, journalists, and the public to discover information about possible environmental contamination near their property, the safety of consumer products, and more, and it is being used more than ever before, with almost 800,000 requests submitted in 2016. Many of POGO’s own investigations rely on documents we obtain through FOIA.

While there are still problems with the law that must be addressed and continued threats against it, today is about celebrating and looking back on the impact it has had so far. The Sunshine In Government Initiative launched a Tumblr last year that rounds up news stories that wouldn’t have been possible without the landmark transparency law, and journalists continue to use FOIA every day.”






New FOIA rules Open Contractors to More Risks of Disclosure


Image: Mason Mi.US


“The amendments create a “presumption of openness” limiting the federal government’s discretionary power to withhold requested information.

Government contractors and grant recipients must proactively respond when a FOIA request potentially targets confidential and/or proprietary data that has been shared with the government.

Last summer, Congress passed and President Obama signed into law the FOIA Improvement Act of 2016 (Public Law No. 114-185), which adds to and amends the Freedom of Information Act.

Importantly, the 2016 FOIA improvement Act did not change FOIA Exemption 4, which protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” Under Exemption 4, the government is prohibited from disclosing trade secrets or other proprietary/confidential information that any submitter has shared with the government.

Unlike with some of the other FOIA exemptions, in their interpretation of Exemption 4, courts have determined that the government lacks any discretion to disclose trade secret or commercial confidential/proprietary information in response to a FOIA request.

The 2016 FOIA Improvement Act was passed to accelerate the FOIA process and to compel government FOIA officials to provide as much information as soon as possible in response to a FOIA request. The act now imposes a penalty (i.e., the waiver of the statutory FOIA fees) on the agency for failing to provide a timely FOIA response. The act also requires that the FOIA response segregate exempt information from releasable information in the same document, as an agency can no longer simply refuse to produce any document containing exempt information.

In addition, the Act requires the agency to produce electronic copies of documents/data, which can be instantly disseminated by the requesting party, rather than paper documents, in response to a FOIA request.

Furthermore, the act requires the creation of a federal government FOIA portal that allows the same FOIA request to be simultaneously submitted to multiple agencies. As a result, submitters must be poised to respond immediately as soon as the government provides notice that a FOIA request seeks disclosure of the submitter’s data and/or documents.

As an initial step, whenever any person or entity first shares information/data with the government that it does not want disclosed to any third party, the title page and each subsequent page of the confidential document or data should be plainly marked as containing “confidential and proprietary information which is exempt from disclosure under FOIA.”

Next, when the agency contacts the submitter (as FOIA requires) to tell them that a request seeks the disclosure of their information, the submitter should promptly respond by identifying:

1) The specific information within each responsive document that is exempt from disclosure.

2) The particular FOIA exemption (there are nine) that prohibits disclosure (as stated above, Exemption 4 protects trade secrets and confidential/proprietary data)

3) Why that exemption applies to each identified section of data/information that the submitter seeks to protect.

Also, the submitter (or submitter’s counsel) should attempt to maintain an open dialogue with the assigned agency FOIA official throughout the FOIA process to promptly address and resolve any disagreements about what should and should not be disclosed before the agency takes a final disclosure position, which is often difficult to unwind.

Finally, the submitter must be ready to assert a “reverse FOIA” action to prevent the disclosure of trade secrets or other confidential/proprietary information in the event that the agency disregards the submitter’s exemption recommendations before the agency releases the submitter’s trade secrets and confidential information in response to a FOIA request.”



Strengthening Government Accountability and Transparency




“People tend not to trust what is hidden.

Use transparency to rebuild confidence in government.  The new President should build a government that is open and honest with the public.”

“The next President will likely assume office with a unique set of governing challenges. First, confidence in government is at one of its lowest levels in history, although the most intense disapproval and lack of trust is reserved for Congress. Second, it is unlikely that Congressional gridlock will change much, meaning that the Administration will need to rely on executive powers to advance many of the President’s policies and priorities. And third, the next President will have trouble claiming a mandate for action since he or she will take office at a time when a large percentage of Americans do not trust the person.

We believe that accountability and transparency reforms can help address some of these challenges. For more than 35 years, the Project On Government Oversight (POGO) has championed good government reforms as a nonpartisan, independent watchdog. Implementing the following recommendations will help the country achieve a more effective, accountable, open, and ethical government—one that is truly responsive to the needs of its citizens.

Usher in a new era of accountability in government. The federal government is a large and complex organization that is vulnerable to mismanagement or undue influence. The new President must establish proper checks and balances to ensure that effective and ethical operations are the norm and to identify and correct any problems:

1) Set and enforce a new high standard of ethics. President Obama’s Ethics Executive Order played a key role in reducing corruption in government. That Order should be extended. In addition, the focus on restricting lobbyists from political appointments should be expanded and refocused to limit those with financial conflicts of interest from working as political appointees. The Order should also establish tough restrictions on those leaving government to prevent quid pro quo employment deals and stop former Administration appointees from misusing their government contacts. In practice, waivers should be used sparingly and should be constructed to protect the integrity and independence of executive branch authority.

2) Improve whistleblower protections. Employees at the Federal Bureau of Investigations and the Department of Defense, as well as Intelligence Community contractors across multiple agencies, have some of the weakest whistleblower protections. Despite the success of whistleblowers in deterring taxpayer waste and contractor abuse we have seen their protections stripped away. For instance, new authority granted to agencies to designate jobs as “sensitive” could be used to entirely negate existing due process for whistleblowers.

  • Ensure responsible implementation of the Insider Threat program, an effort to identify employees who could pose security risks, and guarantee that it is not being used to target whistleblowers. Whistleblowing should not be categorized as an inside threat, as espionage and sabotage is. Additionally stop the abusive practice of prosecuting whistleblowers under the Espionage Act.
  • Work to expand whistleblower protections to cover any disclosure made by a federal employee or contractor to a supervisor, Member of Congress, or an Inspector General. And immediately extend all the protections of Presidential Policy Directive 19 to Intelligence Community contractors.
  • Stay proceedings to remove workers found ineligible to occupy jobs designated “sensitive” until the Government Accountability Office (GAO) can review the internal agency appeal processes and the impact of limiting employees’ rights to appeal to the Merit Systems Protection Board. Also restore due process rights for employees who were removed from their positions due to a change in “sensitive” status.

3)    Establish a new position in the White House that focuses exclusively on transparency and accountability. The person hired for this position must be part of the President’s inner circle and have adequate staff support—the clout this person has derives from the understanding that he or she speaks for the President. The person should report to the President and senior staff on what is being done to strengthen accountability and transparency, and about what is working and not working when it comes to strengthening government accountability.

4) Fill Inspector General vacancies. Inspectors General (IGs) serve as independent watchdogs within federal agencies, conducting audits and investigations that identify waste, fraud, and misconduct. They are essential to a well-functioning federal government. Unfortunately, it has become too common that IG positions are left vacant for months or even years, robbing their offices of leadership. Promptly work to appoint and maintain strong independent IGs across the federal government and ensure that their offices have sufficient resources to conduct their investigations.

Use transparency to rebuild confidence in government. People tend not to trust what is hidden. The new President should build a government that is open and honest with the public:

1) Put an end to secret law. An increasing number of binding governmental rules have not been disclosed to the public or even to other branches of government. They come in the form of opinions, memos, and letters, many of which deal with interrogation, detention, surveillance, and other national security issues. Secret law is also used to address a wide range of non-security issues including establishing what government grantees are permitted to do with federal funds, and governing how international agreements are negotiated and ratified. In a democracy, the public should always know what the laws are.

2) Use proactive disclosure to shed a light on government activities and decisions. Despite being more than 20 years into the internet age, we still rely too much on the passive request-and-respond process of FOIA. Proactive disclosure is faster, gets the information out to everyone, and demonstrates that government welcomes oversight.

  • Establish a standard of disclosed records for all agencies, starting with the calendars of senior agency staff, visitor logs, communications with Congress, and directories (including contact information) for government employees. Some agencies already post these types of documents, so there is no major technical or policy barrier, but such disclosure is inconsistent across the federal government.
  • Create a collaborative process for agencies to move beyond the disclosure floor and identify other categories of records the public would find most useful based on stakeholder input, and schedule them to be processed for proactive disclosure.
  • Expand sub-recipient reporting to follow federal money all the way to final users. Also disclose more data about tax-expenditures (which now accounts for more than $1 trillion annually). Little engenders bipartisan agreement more than the desire to know how the federal government is spending our money.
  • Address the perception that the government is stacked in favor of powerful special interests by requiring disclosure of political contributions by federal contractors and publicly held companies. Additionally, the Federal Communications Commission should disclose in a searchable format information about who is funding political ads and for how much.

3) Improve regulatory transparency. There are growing concerns about federal rulemaking—that there is a lack of accountability for those overseeing the process, that the public doesn’t get all of the information, and that enforcement of the resulting regulations has become lax:

  • Improve disclosure during the regulatory review process. The rulemaking process should require disclosure of all documents and communication between agencies and the Office of Information and Regulatory Affairs related to a proposed or final rule, as well as documents received from outside parties. All substantive changes made to rules should be identified, and agencies should indicate which entities requested the changes.
  • Establish clear standards across all agencies for management of rulemaking records, including the location and format of data about the regulations’ positive and negative effects. The data on the positive effects of regulations (benefits) should be prominently displayed. Currently it is relatively easy to obtain data about the negative impact of regulations (costs), but much harder to obtain benefit data.
  • Increase disclosure about enforcement of regulations. There is a perception that large companies get special treatment when it comes to enforcement, including reduced penalties, deduction of negotiated penalties from taxes, and deferred prosecutions. Agencies should be required to make information about their regulatory compliance and enforcement activities accessible, downloadable, and searchable online.

4) Strengthen the Freedom of Information Act (FOIA). FOIA has been the foundation of transparency for the federal government for 50 years now, but it has numerous weaknesses—it’s slow, costly, contentious, and confusing. As agencies work to implement the newly passed FOIA Improvement Act, the President should seize the moment and place an emphasis on making FOIA work more effectively, starting with reducing (and eventually eliminating) backlogs of requests, and improving response rates. Additionally, the President should voluntarily expand the scope of FOIA to cover emails of his or her Administration related to government work sent through private servers. These improvements will likely require investments in staff, technology, and training.”


Freedom of Information Act (FOIA) Fee Waivers Protected


Image: Altus_FOIA


“Preventing federal agencies from using fees as a weapon against public access to government information.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously protected the Freedom of Information Act’s (FOIA) public interest fee waiver and news media fee classification.

Cause of Action, an advocacy group promoting transparency and accountability,submitted a FOIA request to the Federal Trade Commission about changes to “product-endorsement guides” and “documents concerning the FTC’s history of granting public-interest fee waivers.” The FTC categorized Cause of Action as commercial and refused to grant its request for a public interest fee waiver or, in the alternative, to be classified as a member of the media. Cause of Action then filed a lawsuit.

The district court agreed with the FTC’s FOIA policy, and Cause of Action appealed the district court ruling. The U.S. Court of Appeals for the D.C. Circuit overturned the district court decision and remanded the case to the trial court with new criteria for interpreting FOIA.

Cause of Action primarily wanted to receive a public interest fee waiver, which would waive all fees associated with its FOIA requests. The district court found Cause of Action needed to reach a “wide audience” to receive a public interest waiver, but the appellate court disagreed. In fact, according to the appellate court, “there is nothing in the statute that specifies the number of outlets a requester” needs to reach “to contribute significantly to the public understanding.”

The D.C. Circuit Court also cited a Second Circuit ruling that stated organizations only need to reach “a reasonably broad audience of persons interested in the subject” to be in the public interest. The type and number of outlets the requested information would reach are irrelevant.

The appellate court also found that the FTC was wrong to deny Cause of Action a public interest waiver concerning the FTC’s policy regarding FOIA waivers. The FTC argued that because Cause of Action would be the “primary beneficiary,” it could not be in the public interest category. However, the court ruled that FOIA requests only need to “enlighten more than just the individual requester.” It also ruled that the request was not for commercial gain because it did not increase Cause of Action’s “commerce, trade, or profit.”

If its request did not meet the requirements for a public interest waiver, Cause of Action had asked to be classified as a member of the news media. Unlike the public interest category, agencies may charge organizations categorized as news media duplication costs for documents over 100 pages. The appellate court defined “news media” as a “person or entity” who “gathers information” to create “a distinct work” for distribution to an audience. It also said entities who only partner with media to disseminate information are also news media.

The appellate court ruled that the media category focuses “on the nature of therequester, not its request.” Once an organization is categorized as news media, it should continue to be classified as such regardless of the content of its FOIA requests.

Additionally, organizations only need to show a “firm plan” to make information available to the public. They do not need to actively disseminate this information.

The FOIA protections reaffirmed by the appellate court came soon after an important case involving the Transactional Records Access Clearinghouse (TRAC), whichsubmitted a FOIA request for three Immigration and Customs Enforcement (ICE) databases and “broader electronic data maintained by U.S. Customs and Border Protection.”

In its ruling on TRAC, the U.S. District Court of D.C. stated that if organizations establish that they “intend and have the ability to disseminate new research to the public,” than they are news media. This ruling also supports the decision in Cause of Action v. FTCestablishing that a news media organization can remain classified as such in perpetuity unless it changes “its research activities in the future.”

The Project On Government Oversight frequently advocates reforming FOIA’s fee waivers. In a 2011 public comment on FOIA, POGO, along with Public Citizen, criticized the chilling effect fees have upon requesters, and in 2014 POGO asked Congress to reform FOIA fees by supporting the FOIA Improvement Act.

Ultimately, the court decisions in favor of Cause of Action and TRAC will make it easier for traditional and non-traditional media and public interest organizations, like POGO, to receive FOIA fee waivers. As a result, more information will be disseminated to the public, increasing government transparency and accountability.”