OMB’s Proposed FOIA Fee Guideline Revisions Don’t Go Far Enough, State Department Historical Advisory Report Slams DoD Performance Again, and More: FRINFORMSUM 5/8/2020

OMB’s Proposed FOIA Fee Guideline Revisions Don’t Go Far Enough

The Office of Management and Budget is currently accepting comments on proposed revisions to its uniform FOIA Fee Guidelines, which date from 1987 and govern when and how all agencies can charge FOIA fees. The revisions are unconscionably belated, were undertaken not voluntarily but only because of an Administrative Procedures Act lawsuit filed by Cause of Action, and do not go far enough to address several major flaws that the guidelines have had since their inception.

OMB’s 2020 revisions should focus on improving inadequate language from the 1987 guidelines related to FOIA requester fee categories. FOIA is not free, but requesters placed in “preferred” fee categories, like representatives of the news media or educational institutions, are entitled to significantly reduced fees that should often result in all fees being waived. The news media fee category in particular, thanks to the landmark case National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989) and later 2007 statutory amendments to the FOIA, should be applied equally to freelance journalists, bloggers, digital publishers, and compilers of released documents.

However, OMB’s fee guidelines never incorporated D.C. Circuit language from the Archive’s victory, or statutory revisions to the law, and instead maintained the most restrictive interpretations of these fee categories as possible. This has led to decades of wasteful litigation because requesters were forced to challenge inappropriate requester fee category denials in court.

OMB should take this opportunity to include the D.C. Circuit’s language on “news media” in the revised Fee Guidelines. The Guidelines should also explicitly include scholarly organizations, think tanks, high schools, and other educational institutions in the educational requester fee category.

OMB is accepting comments on the proposed revisions until June 3, 2020.

State Department Historical Advisory Report Slams DoD Performance Again

For the third year in a row, the State Department’s Historical Advisory Committee (HAC) excoriates the Defense Department for its poor performance regarding its obligation to declassify select documents for the Foreign Relations of the United States series. In its annual report for 2019, the HAC says “The pace of the reviews of FRUS volumes submitted to the interagency review process was again disappointing. Notwithstanding some slight improvement, the Department of Defense (DoD) remained the principal obstacle.” The report further notes that DOD “responded to less than one-third of the volumes that OH submitted for its review, it took more than 4-times longer than the mandated timeline when it did respond, and its few responses were of poor quality.” The HAC recommended that “DoD to take its cue from the CIA, notwithstanding the challenges that agency confronts in declassifying documents and meeting the mandated timelines for FRUS reviews.”

The FRUS series is statutorily obligated to publish a “thorough, accurate, and reliable” record of US foreign policy “no later than 30 years after the events that they document.” Yet the office published only two FRUS publications in 2019 – down from six in 2018 and eight in 2017. These volumes are:

• FRUS, 1977–1980, Volume XIX, South Asia (August 8)
• FRUS, 1969–1976, Volume E–9, Part 2, Documents on the Middle East Region, 1973–76 (October 23)

There was some good news in this year’s report, however. The HAC praised the performance of both the State Department’s Office of Information Programs and Services and the National Security Council’s (NSC’s) Office of Records and Information Security Management.

Senate Judiciary Demands Answers from DOJ on FOIA Compliance During COVID

Senators Patrick Leahy, Chuck Grassley, Diane Feinstein, and John Cornyn recently sent a bipartisan letter to the Justice Department’s Office of Information Policy demanding answers on agencies decreased capabilities processing FOIA requests during the COVID-19 pandemic (the Archive’s own running list of FOIA-related COVID-19 updates can be found here). As the senators noted, “Of course, government transparency and accountability is even more important during a time of crisis. While many agencies have sought to be clear about their temporarily reduced capabilities, we are concerned that some, particularly the FBI, may have created unnecessary burdens on requesters in response to the COVID-19 national emergency declaration,” going on to note “We understand all agencies and departments are continuing to adapt to the current circumstances, but it is the [Justice] Department’s duty to ensure that FOIA administration is not simply cast aside as a temporary inconvenience.”

The senators told OIP to provide the committee with, among other things, a list “of agencies and departments that have limited in any manner their acceptance of FOIA requests or delayed processing of such requests due to the current crisis, along with OIP’s understanding of the specific reasons for such limitations and delays,” and the “specific steps, if any, has OIP taken during the pandemic to encourage the use and integration of technology into agencies’ FOIA processing protocols”.

OGIS Hosts Webinar with CDC’s FOIA Shop During COVID

The Office of Government Information Services is hosting a webinar on Tuesday, May 12 with the Centers for Disease Control and Prevention’s FOIA leadership, “who will provide insight into the agency’s FOIA program and suggest strategies for successful FOIA requests.” Registration is required for the event, for which attendees can submit questions in advance. A question likely on many requesters minds: Why does anecdotal evidence show that CDC is responding to FOIA requests with the carte blanche (and often inappropriate) response that the requests are too broad? Tune in to find out.

WaPo Sues State Department for COVID Cables

The Washington Post is suing the State Department after the Department denied the Post’s request for expedited processing for documents concerning the Wuhan Institute of Virology, “which has conducted studies on bat coronaviruses like the one that has caused the current health crisis.” The expedited processing request was denied on the grounds that the State Department found “no ‘compelling need” to rush the information. Read more here.

FOIA Wins Release of Historic OLC Opinions

In a major victory, the Knight First Amendment Institute at Columbia University has won the release of 96-Nixon Era Office of Legal Counsel opinions (OLC opinions that have previously been hidden, at least in part, by FOIA’s “deliberative process” exemption). The Knight Institute filed the FOIA request in February 2019, seeking all OLC opinions written prior to 1994, and filed suit when OLC failed to respond to the request with any documents. The opinions are now free thanks to the efforts of Senators Leahy, Grassley, Cornyn, and others, who mandated a 25-year sunset to the “deliberative process” exemption in the 2016 FOIA Improvement Act.

FCC Net Neutrality Records

Federal Judge Lorna Schofield has ordered the Federal Communications Commission to fulfill FOIA requests from two New York Times reporters seeking “server logs that may provide new insight into the allegations of fraud stemming from agency’s 2017 net neutrality rollback.” The ongoing saga began nearly three years ago when the FCC stonewalled FOIA requests for information related to an alleged DDoS attack the agency claimed crashed its online public comment system; the supposed attack came after the FCC chair, Ajit Pai, proposed to “dismantle net neutrality rules” and HBO’s John Oliver encouraged the public to comment on the proposed changes. In her ruling, Judge Schofield held that the FCC, which argued making the IP addresses in question public would violate personal privacy, “failed to adequately spell out how anyone would be harmed by the disclosure”; instead finding that the public interest in the disclosure outweighed any hypothetical harm.