Category Archives: Freedom of Information

Freedom of Information Beyond the Freedom of Information Act

Source: David Pozen, Columbia Public Law Research Paper No. 14-541, February 1, 2017

From the abstract:
The U.S. Freedom of Information Act (FOIA) allows any person to request any agency record for any reason. This model has been copied worldwide and celebrated as a structural necessity in a real democracy. Yet in practice, this Article argues, FOIA embodies a distinctively “reactionary” form of transparency. FOIA is reactionary in a straightforward, procedural sense in that disclosure responds to ad hoc demands for information. Partly because of this very feature, FOIA can also be seen as reactionary in a more substantive, political sense insofar as it saps regulatory capacity; distributes government goods in an inegalitarian fashion; and contributes to a culture of adversarialism and derision surrounding the domestic policy bureaucracy while insulating the far more secretive national security agencies, as well as corporations, from similar scrutiny. If this Article’s core claims are correct to any significant degree, then open government advocates in general, and progressives in particular, ought to rethink their relationship to this landmark law.


Source: Reporters Committee for Freedom of the Press, The FOIA Project at TRAC, MuckRock, FOIA Mapper, 2016

This free and collaborative resource on the U.S. Freedom of Information Act, 5 U.S.C. § 552, is provided by the Reporters Committee for Freedom of the Press, with contributions from The FOIA Project at TRAC, MuckRock, FOIA Mapper, and users like you.

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Freedom of Information Act: Litigation Costs For Justice and Agencies Could Not Be Fully Determined

Source: U.S. Government Accountability Office (GAO), GAO-16-667, September 8, 2016

From the summary:
Of the 1,672 Freedom of Information Act (FOIA) lawsuits with a decision rendered between 2009 and 2014, GAO identified 112 lawsuits where the plaintiff substantially prevailed. Litigation-related costs for these 112 lawsuits could not be fully determined. Costs associated with such lawsuits are comprised of (1) the Department of Justice’s (Justice) costs for defending the lawsuits on behalf of agencies, (2) the agencies’ respective costs for the lawsuits, and (3) any attorneys’ fees and costs as assessed by a court or based on settlement agreements awarded to the plaintiffs’ attorneys.

Of the 112 lawsuits, Justice provided information on its costs for defending 8 lawsuits totaling about $97,000. Justice officials stated that the department does not specifically track costs for lawsuits in which the plaintiffs substantially prevailed and that its attorneys are not required to track such costs for individual lawsuits. Regarding individual agencies, 17 of the 28 in GAO’s study had a system or process in place that enabled them to provide cost information on 57 of the 112 selected lawsuits. According to this information, the agencies incurred approximately $1.3 million in FOIA litigation-related costs for these lawsuits during fiscal years 2009 through 2014. The remaining agencies did not have a mechanism in place to track FOIA litigation-related costs where the plaintiffs prevailed. These agencies said costs were not tracked because Justice’s guidance does not require agencies to collect and report costs related to specific lawsuits, or if the plaintiff prevailed as a result of a lawsuit.

As required by FOIA, Justice has reported annually on the results of all lawsuits, including any awards of attorneys’ fees and costs to the plaintiffs. However, for 11 of the 112 selected lawsuits, Justice reported an amount of attorneys’ fees and costs awarded that differed from the amounts reported by the defending agencies. According to Justice, the differences in the award of attorney’s fees and costs were due to the appeals process and settlement agreements between the respective agencies and the plaintiffs.

Although requiring Justice and agencies to report actual cost information could lead to better transparency regarding federal operations, costs would be associated with such reporting. Considering these costs, as well as potential benefits, could help Congress in determining whether such a requirement would be cost-effective for enhancing oversight of FOIA litigation-related operations.

Illinois AG Rules That Public Employees’ Personal Emails Are Public Records – Messages Pertaining to Public Business in Personal Email Accounts Subject to Disclosure Under FOIA

Source: Mark E. Burkland, Benjamin Schuster, JD Supra, August 16, 2016

• The Illinois Attorney General (AG) issued a binding opinion under the state’s Freedom of Information Act (FOIA) that email messages sent or received through public employees’ personal email accounts may be public records subject to disclosure under FOIA if the messages pertain to public business.
• The opinion was issued as a result of CNN’s FOIA request seeking all email messages from Chicago Police Department email accounts and personal email accounts related to Laquan McDonald, who was fatally shot by a police officer in October 2014.
• In light of the AG’s opinion, public bodies should expect to receive FOIA requests that specifically request email and text messages sent or received through personal email accounts and on personal devices. Accordingly, each public body should establish clear guidelines requiring employees to turn over, if requested by the public body, personal email and text messages that pertain to public business….

The Freedom of Information Act Turns Fifty & Is Revised

Source: Congressional Research Service, CRS Reports & Analysis, Legal Sidebar, July 1, 2016

Fifty years ago, President Lyndon B. Johnson signed the Freedom of Information Act (FOIA) into law to confer the public with a statutory right of access to many federal agency records. On June 30, 2016, President Barack Obama signed The FOIA Improvement Act (S.337) into law to reform FOIA. The FOIA was drafted to clarify the Administrative Procedure Act, which agency heads had interpreted as authorizing broad, discretionary powers to withhold records. Although the original FOIA proposal was well received by the press, federal agencies were resistant. The Senate passed S. 1160 in 1965 after nearly 6 years of consideration, the House in 1966 after 11 years of legislative development. …. As FOIA moves into its second half-century, the law will likely continue to serve as a primary legal authority supporting requests by private entities for government information. The subject of such requests seems likely to evolve over time, as will the nature of information which the government believes should be shielded from public disclosure. Given the changing nature of these issues, legislative interest in FOIA is likely to continue. ….

We’re building an open guide to every state’s public records law

Source: Michael Morisy, MuckRock, July 14, 2016

Help track down and fight public records exemptions across the country.

With agencies increasingly using an array of exemptions to deny access to information, we want to help requesters fight back. We’re launching a project to track every public records exemption in all 50 states – and provide the information needed to successfully overcome times when information is improperly denied.

The power of administrative appeals is undeniable: At the federal level, over 40 percent of appeals resulted in rejections being overturned last year, according to data.

Budget Transparency and Legislative Budgetary Oversight: An International Approach

Source: Ana-María Ríos, Francisco Bastida, Bernardino Benito, American Review of Public Administration, Vol. 46 no. 5, September 2016
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From the abstract:
This article attempts to evaluate the role the legislative budgetary oversight plays in enhancing budget transparency. This relationship has not been empirically tested so far. For a sample of 93 countries surveyed by International Budget Partnership in 2010, we show that, as expected, legislative budgetary oversight has a positive influence on budget transparency. Besides, the legal system, political competition, and economic level are also found to affect budget transparency. As an additional analysis, we investigate the determinants of legislative budgetary oversight along the budgetary process. In this vein, the type of legislature, legal system, Supreme Audit Institution’s budgetary oversight, economic level, and democratic level determine legislative budgetary oversight.