Tag Archives: FOIA

DHS (CIS) Freedom of Information Act Record System (“FIRST”) Cuts FOIA Backlog By 64%

Image: DHS


“Citizenship and Immigration Services attributes its success — a 64% drop in its FOIA backlog in 2019 — to its new FOIA tracking and processing system, called the Freedom of Information Act Record System (FIRST).

It’s the only end-to-end system in government that handles FOIA submissions, manages them and then responds to the public online.”


“The Department of Homeland Security and one of its busiest components, Citizenship and Immigration Services, both say they’ve made notable progress on their Freedom of Information Act backlogs this year, even though they’re fielding more requests than ever.

But, like many aspects of the department, various components have their own disparate approaches, and processing and tracking systems, to handle incoming FOIA requests. A departmentwide approach, which the Government Accountability Office said is key to DHS’ attempts to address its FOIA backlog, isn’t finished yet.

CIS received more than 200,000 FOIA requests in 2019. Meckley said processing times for a CIS FOIA case are down, on average, by more than 22 minutes. She attributed the improvements to FIRST.

CIS alone handles about half of the department’s FOIA requests, which represent about a quarter of all governmentwide inquiries.

Requests to DHS represent nearly 45% of all FOIA inquiries across government.

DHS in fiscal 2019 processed nearly 430,000 FOIA requests, a 14% increase over the previous year’s total of roughly 400,000 requests, James Holzer, deputy chief FOIA officer for the department, said.

The department said it ended 2019 with a backlog of 32,500 FOIA requests, a 40% decrease over the previous year’s backlog.

DHS also has its own enterprise FOIA tracking and processing system, which six out of nine components currently use, Holzer said.

But members on the House Homeland Security Oversight, Management and Accountability Subcommittee expressed some concern that DHS components still use disparate FOIA systems.

Previously, CIS only accepted FOIA requests by mail, fax or email. Requesters received a CD in the mail with the appropriate documents, Meckley said.

Requesters using the new system can create an online account to submit and receive documents digitally.

“Early indications are that FOIA processors are almost doubling productivity,” Meckley said. “The digital request, management and delivery process will save time, improve efficiency and eliminate potential errors that can occur when manually handle paper.”

Meckley acknowledged CIS and other DHS components have vastly different lines of business, but she sees an opportunity for other pieces of the department to tap into her agency’s services.

“For us the concentration has been focusing on a technical solution that not only met yesterday’s needs but today’s needs and tomorrow’s needs,” she said. “We are in that position now. We are poised to share information about FIRST with other DHS components. I think that solution is one that is scalable.”

On occasion, the components have shared information with each other and processed FOIA requests on the other’s behalf, especially when it comes to immigration.

CIS and ICE, for example, once had a memorandum of agreement where CIS had processed certain requests for ICE.

That agreement isn’t in place today, and lawmakers questioned whether it should be.

“I don’t believe that’s been established, that there would be a significant cost savings to ICE,” Holzer said. “If we were to transfer resources from ICE to pay for CIS to process those records, it could actually impact further operations at ICE.”

The structure of FOIA within DHS has changed, he said, the new end-to-end tracking systems that agencies like CIS are building could

“When we had those memorandums between the components, it was almost necessary because the components were not able to utilize the technology that we had in place,” Holzer said. “The technologies that we currently have in place will allow the record sets to be transferred. I would assume that with a solution such as FIRST that we could grant access to other components to be able to process those records within that solution. If not then we could work with our colleagues to take a look at how we could utilize technology. But my big concern is that I do not want to take resources that are limited at ICE and have them shift it over to CIS to fund a solution that they’re not really interested in participating.”

Meckely said other agencies could easily begin to use the new CIS FOIA system. FIRST uses open source code, and the system is stored on an Amazon Web Services cloud, she said.

“If any DHS component or government agency wants us to expose that code and allow them to use that, we’re ready to have those technical conversations,” she said.”

Greatest Number of FOIA Requests In Record-Setting FY 2018 Came From Individual Citizens



Journalists are now the second-most common requesters of government records; the majority are now people seeking information on themselves.

Federal FOIA offices have struggled to cope with stagnant staffing levels in the face of growing workloads.


” The Justice Department’s prophecy that fiscal 2018 would be a record year for Freedom of Information Act requests came true. But as the number of requests continues to rise, the make-up of people submitting most of them has shifted.

In FY 2018 federal agencies received 5.6% more requests, or an increase of 45,458, than in FY 2017, for a total of 863,729 requests. Collectively, agencies also processed 0.85% more requests, or 830,060 total, in FY 2018 versus the previous year, according to DOJ’s annual report released Thursday.

FY 2018 was the third consecutive year-over-year increase in the number of requests received, and the second consecutive YOY rise in processed requests. Five organizations lead the pack, accounting for more than 70% of all FOIA requests received and processed: the departments of Homeland Security, Justice, Defense and Agriculture, and the National Archives and Records Administration.

FOIA, graph, 2018

Altogether, DOJ counted a 93.8% release rate of information for FY 2018. Of those 830,060 processed requests, more than 70% were closed after being substantially processed. According to the release, 38.9% of them were at least partially granted, 26.9% were fully granted, 14.8% were closed due to a lack of records and 4.3% were fully denied based on FOIA exemptions.

The most commonly cited exemptions were Exemptions 6 and 7C, which both have to do with personal privacy interests. These range from personnel and medical files — Exemption 6 — to information for law enforcement purposes that when disclosed “could reasonably be expected to constitute an unwarranted invasion of personal privacy” — Exemption 7C.

The report concluded by saying that despite the increase in request processing, agencies have room for improvement. DOJ recommended agencies continue to target the 20-working-day deadline to respond to simple FOIA requests and close their 10 oldest pending requests and consultations.

FOIA, backlog, graph

But the rise in processing wasn’t enough to stop the federal FOIA backlog from growing as well. The backlog for FY 2018 was 130,718 requests, up from the previous three years but still not as high as in 2014, which saw 159,741 backlogged requests governmentwide.

DOJ’s report said seven agencies were responsible for roughly 82% of that inventory: DHS, DOJ, and the departments of State, Health and Human Services; Veterans Affairs and Interior. One bright spot was that the time to process simple requests hastened, from 27.96 days in FY 2017 to 25.52 days in FY 2018.

Rise of first-person requesters

Aside from the sheer number of requests, agencies’ FOIA offices face another growing problem. While FOIA laws were designed with news organizations and journalists in mind, for the purposes of government accountability, these groups are no longer the most common requesters.

Margaret Kwoka, an associate professor at the University of Denver Sturm College of Law, presented research to the NARA FOIA Advisory Committee on Thursday, that individual requesters are turning to FOIA “by the hundreds of thousands” for their own records on matters such as their own immigration documents, medical and family histories. They also submit FOIA requests to obtain information needed to receive benefits, such as from the Veterans Health Administration.

The Social Security Administration has also seen several requests from people doing genealogy research, while the Equal Employment Opportunity Commission mostly gets requests for charge files, she said. Her findings mainly focused on DHS, VA, SSA and the EEOC.

Kwoka said the mismatch between FOIA’s design and need means that people are denied their due process, agencies become less efficient and public trust in those agencies is undermined.

“FOIA may be serving extremely important interests in these regards, but I think research shows that it’s serving these interests poorly” she said of the impact on due process, particularly when it comes to attorneys trying to obtain documents for discovery. “In essence, sometimes the information simply doesn’t come in time to be useful to the client’s case.”

She described moving certain information requests out of FOIA offices, like is done at the IRS, and putting more medical records online as a couple ways to cut down the backlog.

FOIA office staff numbers still low

Federal FOIA offices have struggled to cope with stagnant staffing levels in the face of growing workloads.

As of October, agencies only had about 4,500 FOIA officers to handle requests and a NARA study presented in March estimated about 188 requests for every FOIA officer.

During Thursday’s committee meeting, Jason Baron, an attorney with Drinker Biddle & Reath and expert in the preservation of electronic documents, said that across the board agencies are engaging in “tremendous” amounts of FOIA training, particularly at DHS.

However, he also warned agencies still have a long way to go when it comes to digital records management, particularly emails. He said he hoped the committee could foster dialogue with FOIA officers about what tools and technologies exist in the marketplace to tackle this transition.

“They may not have experienced the need yet for searching across millions of emails for the typical FOIA request — that’s not the typical FOIA request that an agency receives — but the future is coming,” he said.”

FOIA ‘Imbalance’ between Agency Staff And Number Of Cases


Image: Mason Mi.US


“A study featured Wednesday at a meeting of the FOIA Advisory Committee at the National Archives and Records Administration shows that for every FOIA officer, there are about 188 FOIA requests.

“That ratio between workforce and workload, said Tina Nabatchi, an associate professor for public administration and international affairs at Syracuse University, appears difficult to manage.”


“The government received yet another record-breaking volume of Freedom of Information Act requests last year, but a handful of agencies, year after year, continue to receive the majority of those requests.

“There really still appears to be this imbalance in the total number of full-time staff and the number of cases,” Nabatchi said, one of the authors of a report published last year on trends in FOIA administration.

The study analyzes aggregate FOIA.gov data from 102 agencies between 2008 and 2016.

Bradley White, a FOIA officer for DHS’s Office for Civil Rights and Civil Liberties (CRCL), said that staff-to-request ratio seemed lower than what he’s experienced.

White previously worked for seven years at the Immigration and Customs Enforcement’s FOIA office. During that time, he said each agency analyst had a weekly quota of processing 35-to-50 FOIA requests a week.

“That ratio probably fluctuates tremendously depending on where you are,” Nabatchi said.

Khaldoun AbouAssi, an assistant professor of public administration and policy at American University, and the study’s second author, noted that even the most well-staffed agencies struggle with FOIA backlogs.

“We’re seeing that the more staff or the more employees, the higher the number of the FOIA backlog,” AbouAssi said, adding the results of the study would require future investigation.

Over time, the cost of processing FOIA requests has also increased. In 2016, agencies spent nearly half a billion dollars processing FOIA requests. However, Nabatchi added that collected fees for FOIA covered less than 1 percent of total costs.

In 2016, agencies spent nearly half a billion dollars processing FOIA requests. (Source: Syracuse University’s Tina Nabatchi and American University’s Khaldoun AbouAssi)

Between 2008 and 2016, six agencies consistently received more requests than any other agency:

  • Department of Homeland Security
  • Justice Department
  • Defense Department
  • Health and Human Services
  • Department of Veterans Affairs
  • Social Security Administration

Agencies that receive the most FOIA requests, Nabatchi noted, fall into one of two buckets: agencies that process individual benefits for claims, or agencies with a law enforcement or national security mission.

Five of those agencies — VA, HHS, DOJ, DHS and DoD — and the Agriculture Department employ more than 65 percent of governmentwide FOIA staff, Nabatchi said.

However, Emily Creighton, the deputy legal director at the American Immigration Council, and a member of the governmentwide FOIA Advisory Committee, said a “large number” of FOIA requests at DHS come from people submitting individual files requests to U.S. Customs and Immigration Services for their immigration records.

“That really just has to do with just how the immigration system works, and that’s how they access their data. That is the only way that they can access their records,” Creighton said.

Nabatchi said she and AbouAssi debated whether to break out the FOIA data on agency components, but ultimately chose not to.

“Do we look at the agency as a whole … or do we start looking at the units within the agencies, because there’s going to be variation within those units as well,” she said.

Empowering an ‘overlooked’ FOIA workforce

Alina Semo, the director of the Office of Government Information Services at NARA, said in an interview last week that professionals are often “overlooked” and not given the credit as they deserve fulfilling a difficult but important job.

“They’ve got to go knocking on doors at their agencies and ask people to open up their file cabinets and give them documents,” Semo said. “Most folks at agencies are not happy to see them: ‘Please leave me alone. I’m trying to fulfill the mission of the agency. I don’t have time to answer a FOIA request.’”

In 2012, the Office of Personnel Management introduced a government information job series aimed at giving FOIA professionals more of a career path. Since then, Semo said she’s generally seen a more positive attitude among FOIA professionals, but added that the future of the workforce remains a concern.

“I worry about the fact that we’re not going to have another wave of FOIA professionals that will come behind the ones that are going to retire in 10, 15, 20 years,” she said.

Earlier this month, OGIS, in its annual report to Congress, recommended that lawmakers pass legislation that would give agencies “sufficient resources” to respond to FOIA requests and comply with Section 508 of the Rehabilitation Act

The FOIA Improvement Act, which Congress passed in 2016, requires agencies to post documents online after they’ve been requested three or more times. But one of the major bottlenecks of that law is the time it takes to code released documents to make them accessible to online users with physical disabilities.

In many cases, FOIA officials end up doing the Section 508 coding, but that takes time away from processing more FOIA requests.

“What we hear from agencies is that the IT shops don’t necessarily want to help because they have their own to-do lists that don’t include making documents Section 508 accessible, and usually it falls back to the FOIA professionals to do it,” Semo said.

As part of its request to Congress, OGIS has suggested reaching out to the General Services Administration’s 18F agency to streamline and simplify the process of making documents 508 compliant.

Likewise, OGIS said the Department of Health and Human Services’ National Institute on Disability, Independent Living and Rehabilitation Research could help automate Section 508 processing.

A third, but less likely scenario, Semo said, would have agencies proactively post an “index” of records released under FOIA.

“Someone with disabilities could look at the index, which itself would be 508 compliant, and then contact the agency and say, ‘I would like to see documents five, seven and nine,” Semo explained. “At that point, the agency would then go ahead and make the documents five, seven and nine 508 compliant.”


Utilizing The Freedom Of Information Act (FOIA)





Image:  ATF.gov

“SMALLTOFEDS” By Ken Larson 

We suggest you study the FOIA site and the agency(s) you target for information.  Be specific in your requests and be prepared to expedite them.

The FOIA can be a valuable tool for your business, but it usually takes patience and practice to use it effectively.


The purpose of this article is to discuss the background and administration of the Freedom of Information Act (FOIA) and suggest tips in using the FOIA as a tool in operating your business.


Extract: United States Department of Justice Web Site:

What is FOIA?

“Enacted on July 4, 1966, and taking effect one year later, the Freedom of Information Act (FOIA) provides that any person has a right, enforceable in court, to obtain access to federal agency records, except to the extent that such records (or portions of them) are protected from public disclosure by one of nine exemptions or by one of three special law enforcement record exclusions. A FOIA request can be made for any agency record. Before sending a request to a federal agency, you should determine which agency is likely to have the records you are seeking. Each agency’s website will contain information about the type of records that agency maintains.

The FOIA is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government. Under the FOIA, agencies must disclose any information that is requested – unless that information is protected from public disclosure. The FOIA also requires that agencies automatically disclose certain information, including frequently requested records. As Congress, the President, and the Supreme Court have all recognized, the FOIA is a vital part of our democracy.”POINTS OF CONTACT (POC)

The following  link is a global means to determine points of contact for a specific request.

I Want To Make a FOIA Request
A typical POC page will look like this:


The Office of Management (OM) advises the public and U.S. Department of Education (ED) employees regarding FOIA requests and ED information available to the public. As the lead organization for ED’s FOIA Program, OM provides training for ED officials and guidance and support to the FOIA Coordinators and FOIA Review Officers in the Department’s Principal Offices and 12 regional and field offices.
Send requests via email to: EDFOIAManager@ed.gov
Send requests via fax to: (202) 401-0920
Send requests via mail to:
U.S. Department of Education
Office of Management
Office of the Chief Privacy Officer
400 Maryland Avenue, SW, LBJ 2E321
Washington, DC 20202-4536
ATTN: FOIA Public Liaison
FOIA Requester Service Center
(202) 401-8365
FOIA Director
(202) 453-6362
Gregory Smith
FOIA Public Liaison and Team Lead
(202) 205-0733
Robert Wehausen
FOIA Analysts
(202) 401-8365
Elise Cook
Arthur Caliguiran
Christie Swafford
FOIA Appeals
(202) 401-8365
Arthur Caliguiran
Privacy Act Requests
(202) 401-8365
Elise Cook
Website: FOIA Request Forms
Although occasions may arise for use of the FOIA on legal matters, personnel issues, and records that relate to agency background and activities, the most common uses of the FOIA in government contracting are as follows:
  • Market Research
  • Copies of historical contracts issued by an agency as well as contractor proposals.
  • Specific articles supporting a protest action.
The FOIA require a 30 day response time to your request, but actual response times vary by agency and backlog.  Here is a link indicating the relative range of experiences of late:
If the agency determines the request will exceed $25 in costs, you should indicate in your request that you will be willing to pays those costs to receive the data.
Identify the document or documents specifically by name and identifying number (s).  When requesting contracts, RFP’s, change orders and similar data, always include the contract number and be specific with regard to references to all changes.  If proposals are requested include a specific request for management, technical and cost volumes. The more detail you provide the more likely the response will supply what you wish to have.
When the government receives requests for copies of contracts, proposals and similar data that contain specific in formation pertinent to another company, they are required to contact that company and ask for identification of information the firm deems proprietary.  To the extent the firm identifies such data, expect the response you receive to have the data redacted (blanked out and unreadable).
Among the larger agencies, especially DOD and Justice, it is rare to receive the information requested in a FOIA within 30 days.  Be prepared to expedite, by email, registered letter and by visitation if necessary, depending on the importance of the request to your business.
Refusals by the government can be appealed if you and your legal counsel make the judgment a given request falls outside of the following exemptions permitted the government or one of three special law enforcement record exclusions detailed at the FOIA web site:

“Exemption 1: Information that is classified to protect national security.  The material must be properly classified under an Executive Order.Exemption 2: Information related solely to the internal personnel rules and practices of an agency.

Exemption 3: Information that is prohibited from disclosure by another federal law. Additional resources on the use of Exemption 3 can be found on the Department of Justice FOIA Resources page.

Exemption 4: Information that concerns business trade secrets or other confidential commercial or financial information.

Exemption 5: Information that concerns communications within or between agencies which are protected by legal privileges, that include but are not limited to:

Attorney-Work Product Privilege
Attorney-Client Privilege
Deliberative Process Privilege
Presidential Communications Privilege

Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.

Exemption 7: Information compiled for law enforcement purposes if one of the following harms would occur.  Law enforcement information is exempt if it:

7(A). Could reasonably be expected to interfere with enforcement proceedings

7(B). Would deprive a person of a right to a fair trial or an impartial adjudication

7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy ”

7(D). Could reasonably be expected to disclose the identity of a confidential source

7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions

7(F). Could reasonably be expected to endanger the life or physical safety of any individual

Exemption 8: Information that concerns the supervision of financial institutions.


Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records.  The provisions protecting those records are known as “exclusions.”  The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. 

The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed.  

The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified.  Records falling within an exclusion are not  subject to the requirements of the FOIA.  So, when an office or agency responds to your request, it will limit its response to those records that are subject to the FOIA.”

When notified by a contacting officer that copies of your company contract(s) and/or proposal(s) have been requested by another firm, identify to the officer  the pricing data, proprietary data and sensitive information you do not wish to have disclosed and formally indicate by letter the sections of the documents you wish redacted prior to release to another firm. The officer may or may not provide to you the name of the firm requesting the information. If you are involved in a re-compete effort for which you are the incumbent it is wise to inform the FOIA Officer of the agency involved that you expect to be notified when requests are made for copies of your information. “

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.”