Category Archives: Freedom of Information

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

HIGHLIGHTS:
• 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 FOIA.gov 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
(subscription required)

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.

How business lobby networks shaped the U.S. Freedom of Information Act: An examination of 60 years of congressional testimony

Source: Jeannine E. Relly, Carol B. Schwalbe, Government Information Quarterly, In Press, Available online 6 July 2016
(subscription required)

From the abstract:
The news media and public interest groups pushed hard for the passage of the Freedom of Information Act (FOIA) in 1966. Since then, however, a majority of FOIA requests have been filed by business representatives or their lawyers, a phenomenon also observed in other countries that have adopted similar legislation. Although myriad policy networks helped shape the present-day U.S. law, this article focuses on the congressional testimony of business interests in the years leading up to the adoption of the FOIA and the following 50 years, as the legislation reaches its half-century anniversary. The authors undertook this research because business interests are the largest requester group under the FOIA. Their influence has been noted in a small strand of literature, largely related to the courts, in steering the degree to which the public has access to information. This study found that business interests, particularly from the 1980s on, played a key role in shaping the FOIA by decreasing access to government-held information. This is a critical finding, given that the FOIA was adopted to promote the democratic norm of governmental accountability.

Highlights:
• Business and corporate representatives are the majority of U.S. FOIA requesters.
• Business networks, from the 1980s on, played a key role in shaping the FOIA.
• Industry networks lobbying for FOIA amendments represented interests of the time.
• Critical junctures provided policy openings for business shaping the FOIA.

Related:
Businesses have worked to cut ‘public’s right to know’
Source: Mike Chesnick, Futurity, July 8, 2016

….Relly’s and Schwalbe’s study began with a review of paper records of congressional testimony from the 1950s and ’60s at the State Library of Arizona, then progressed to digital records of testimony from that period to this past year.

For 40 of the FOIA’s 50 years, Relly says, “We found clearly that corporations and business organizations—sometimes representing thousands of companies—pressed lawmakers in testimony and behind the scenes to advance legislation that would advantage industries and disadvantage the public.”….

The Art of the FOIA: Public Records and Donald Trump

Source: Michael Morisy, MuckRock, July 8, 2016

From his real estate deals to a fallen educational empire, Trump has left his mark in the public record

The Freedom of Information Act has been a particularly hot topic this election season, as Hillary Clinton’s use of a private email server stymied earlier attempts at requesting State Department records and left many wondering if the elaborate setup was simply a means of avoiding public scrutiny.

But even those who have never served in government can be fair game for clever FOIA requests. You don’t build a sprawling real-estate, media, and #brand empire without agencies taking notice, and Donald Trump is no exception.

Many of the public records released on Trump this election season didn’t come through public records or FOIA requests, but through court records, which generally fall outside of normal request channels but which still remain an important source of public accountability. In many cases, those court records are the best or only feasible way to dig into major disputes involving Trump, even when his choices have reshaped whole cities.

FoIA in the age of “Open. Gov”: An analysis of the performance of the Freedom of Information Act under the Obama and Bush administrations

Source: Ben Wasike, Government Information Quarterly, In Press, May 21, 2016
(subscription required)

From the abstract:
This study used five standard Department of Justice FoIA parameters to analyze and compare FoIA performance between the Obama and Bush administrations in terms of: efficiency, disposition, type of exemptions, redress and staff workload. Results indicate that while efficiency is higher under Obama, agencies are releasing information only in part. While appeals were processed faster under Bush, petitioners have had more success under Obama. Additionally, FoIA staff workload has dramatically reduced under Obama. One notable finding was that contrary to popular media outcry, neither administration evoked national security and law enforcement exemptions as much as has been widely claimed. Legacy and commonality were also findings indicating that certain trends transcend the incumbent. Implications to government transparency and pertinent issues are discussed within.

Freedom of Information Act Legislation in the 114th Congress: Issue Summary and Side-by-Side Analysis

Source: Wendy Ginsberg, Congressional Research Service, CRS Report, R43924, April 21, 2016

Congress is currently considering legislation that would make substantive changes to the Freedom of Information Act (FOIA). FOIA was originally enacted in 1966 and has been amended numerous times since —most recently in 2009. FOIA provides the public with a presumptive right to access agency records, limited by nine exemptions that allow agencies to withhold certain types or categories of records.

The legislation under consideration in the 114th Congress, S. 337 and H.R. 653, is largely based on bills from the 113th Congress, S. 2520 and H.R. 1211. Both of the bills in the current Congress seek to amend a number of provisions of FOIA for the purpose of increasing public access —including improving electronic accessibility of agency records, clarifying the right to request information related to intra- and inter-agency memoranda or letters, standardizing the use of search and duplication fees by agencies, and requiring agencies to notify requestors of the status of their requests and of the availability of dispute resolution processes for requests that they believe have been inappropriately denied. Both bills would also create a Chief FOIA Officers Council, responsible for informing government-wide FOIA administrators of best practices, and would establish new FOIA-related oversight responsibilities and reporting requirements. ….

…..This report provides a side-by-side comparison of the bills, using the versions that have passed each of their originating congressional chambers. The report also provides context related to bill amendments and language additions that occurred between bill versions, when applicable. Finally, the report provides analysis of certain provisions of the bills. …..