FOIA Improvement Act Signed Into Law

President Obama signed into law the Freedom of Information Act (FOIA) Improvement Act of 2016 yesterday.

The Act places a 25 year limit on the use of the deliberative process exemption, codifies a presumption of openness, and makes various procedural improvements in the FOIA. The Department of Justice summarized its understanding of the new law here.

The White House portrayed the law as consistent with its own record of promoting open government.

“I am very proud of all the work we’ve done to try to make government more open and responsive, but I know that people haven’t always been satisfied with the speed with which they’re getting responses and requests,” President Obama said at an Oval Office signing ceremony. “Hopefully this is going to help and be an important initiative for us to continue on the reform path.”

A White House fact sheet said that more would be done. “The Administration is taking a number of steps to further the progress made since 2009, ensuring that this Administration’s track record of openness is institutionalized throughout government and carries forward for years to come.”

But the new FOIA law explicitly provides no new resources for implementation. So in the face of rising and, in fact, unconstrained demand from some FOIA users, it is unclear how much improvement the FOIA Improvement Act can be expected to generate for the average requester.

“In honor of Congress’ passage of FOIA reform bill, I just submitted approx 700 new #FOIA requests to FBI,” tweeted FOIA campaigner Ryan Shapiro on June 14. He did not appear to be joking.

Congress Passes FOIA Improvement Act

The House of Representatives yesterday approved the Freedom of Information Act Improvement Act, which had previously been adopted by the Senate. If signed by President Obama, as expected, it will strengthen several provisions of the FOIA and should enhance disclosure of government records.

The bill “reaffirms the public’s right to know and puts in place several reforms to stop agencies from slowly eroding the effectiveness of using FOIA to exercise that right,” said Rep. Mark Meadows (R-NC).

“The most important reform is the presumption of openness,” according to Rep. Meadows. “Before claiming an exemption [from disclosure under FOIA], agencies must first determine whether they could reasonably foresee an actual harm.”

“The bill would also put a 25-year sunset on exemption 5 of FOIA, the deliberative process exemption,” added Rep. Carolyn Maloney (D-NY). “It would modernize FOIA by requiring the Office of Management and Budget to create a central FOIA Web site for requesters to submit their request, making it more efficient and accessible to the public.”

“This bill would strengthen the independence and the role of the Office of Government Information Services [the FOIA ombudsman]. OGIS has served a critical role since it was formed in response to the last FOIA reform Congress adopted in 2007,” she noted.

The bill does not address structural challenges facing FOIA, which is designed to serve individual requesters, not the public as a whole. Nor does the bill provide any additional resources for implementing FOIA, which currently consumes hundreds of millions of dollars per year with ambiguous results.

“We have a whole process and money and people devoted to FOIA and I just don’t think it’s getting to the heart of what FOIA’s about,” said Meredith Fuchs, former General Counsel of the Consumer Financial Protection Bureau, last March. “I don’t think it’s the real way to keep government accountable.”

Such criticism from a government official would be unremarkable, except that Ms. Fuchs used to be a litigator for FOIA requesters against government agencies (and years ago she contributed an amicus brief for one of my own lawsuits). She spoke at a fascinating session of the Freedom of Information Day 2016 conference at the Newseum that featured former non-governmental FOIA advocates who have gone into government service.

Tom Blanton of the National Security Archive presented a ringing endorsement of the FOIA’s efficacy as a tool for government accountability at a recent Columbia Law School conference on the fiftieth anniversary of FOIA (beginning around the 50′ mark).

Passage of the FOIA Improvement Act was hailed yesterday by Senator Patrick Leahy, the National Security Archive, Openthegovernment.org, the Project on Government Oversight, and the Sunshine in Government Initiative, among other supporters of the measure.

DoD: Some FOIA Requesters “Try to Monopolize the System”

Criticism of the Freedom of Information Act is frequently directed at the way that agencies implement the FOIA process, or the ways that they fail to do so. Requesters complain that responses to requests are delayed, often for years, that exemptions from disclosures are interpreted too broadly or in self-serving ways, and that fee waivers are arbitrarily withheld. It sometimes seems to be necessary to file a lawsuit just in order to get an agency’s attention.

But it turns out that government agencies also have complaints of their own, including what they consider to be abusive behavior by some FOIA requesters.

The latest report from the Department of Defense Chief FOIA Officer notes that some DOD components are “overwhelmed by one or two requesters who try to monopolize the system by filing a large number of requests or submitting disparate requests in groups which require a great deal of administrative time to adjudicate.”

“For instance, one particular requester singlehandedly filed three requests with SOUTHCOM, 53 requests with AFRICOM, 35 requests with SOCOM and 217 requests with OSD/JS [Office of the Secretary of Defense/Joint Staff] for a total of 308 cases this fiscal year alone. For AFRICOM, this represents 43% of their entire incoming requests for the year and 12% for SOCOM. This requester holds over 13% of the currently open and pending requests with OSD/JS and over the past two years has filed 415 initial requests and 54 appeals with this one component,” the 2016 DoD Chief FOIA Officer report said.

One of the marvels of the Freedom of Information Act is that it enables any person to request any government record (more or less) and to compel an agency to respond. But the same asymmetry that allows a private individual to challenge a multi-billion dollar government agency and, with an adequate legal argument, to prevail, also makes it possible to destabilize the system.

In what is arguably a flaw in the legislative drafting of the FOIA, it is entirely permissible for a person to file dozens or hundreds of requests in a matter of days, at little or no cost to himself, and to obligate the government the government to respond to each one. So while the “supply” of government resources to respond to FOIA requests is constrained by agency budgets, the “demand” from requesters is effectively unchecked. The growth of backlogged requests is a predictable consequence. [I myself have more than a dozen requests pending at the Office of Secretary of Defense, though they were filed over a period of years. I don’t recall being charged by DoD for responding to my requests.]

The practice by some individual FOIA requesters of flooding the system not only monopolizes agency attention, it also places more discriminating or occasional requesters at a disadvantage. When those requesters then file lawsuits because an agency has failed to respond, the system is driven further out of alignment.

“As a result of litigation increases over the previous five years, as well as high profile litigation referrals from agencies outside DoD, specifically from State Department concerning former Secretary Clinton’s emails during this reporting period, FOID [the Office of Secretary of Defense FOI Division] has increased resource transfers from the OSD/JS Initial Processing Office to assist LSO [the Litigation Support Office] in execution of court-driven rolling and final FOIA releases,” the DoD Chief FOIA Officer report said.

“This process adversely affects initial request processing which usually leads to more litigation and disgruntled requesters who do not understand why the Requester Service Centers and Public Liaisons cannot provide more satisfactory solutions. Many components report that additional personnel would be beneficial in resolving their backlogs and complex cases but looming budgetary and personnel cuts, particularly in headquarters elements, across DoD do not promise easy or fast resolutions.”

One conceivable response to this state of affairs would be for Congress to ask the Government Accountability Office to estimate the cost of bringing the FOIA process into full compliance with the law, taking into account the current demand from requesters, which dwarfs that of past years. Then Congress could decide either to appropriate that amount of money, or to adjust the requirements of the law to match the available resources. (To address the specific problem of individuals filing vastly disproportionate numbers of requests, one could imagine imposing filing fees or fee recovery procedures for those filing more than a certain number of requests in a given period of time.)

The pending legislation known as the FOIA Improvement Act, which includes several important FOIA policy provisions, does not acknowledge a need for any additional resources to meet the growing demands on FOIA. To the contrary, it says that even the new requirements of the Act, if enacted, “shall be carried out using amounts otherwise authorized or appropriated.”

Update: Author Nick Turse was apparently the FOIA requester that the DoD Chief FOIA Officer had in mind. He presents his perspective here.

Redacted Intelligence Budget Documents Released

For the coming decade, the Department of Defense Military Intelligence Program (MIP) will focus its new investments “on space protection, enhancing capabilities that provide intelligence in Anti-Access / Area Denial environments, improving intelligence support to Cyber operations, and improving Security.”

So says the FY 2016 Congressional Budget Justification Book for the MIP, which was released this week in heavily redacted form under the Freedom of Information Act.

Though the majority of the document has been withheld, the released portions nevertheless contain fragmentary observations of interest.

For example, “budget uncertainty impeded efforts to develop and maintain language professionals at the highest levels of proficiency to meet the challenges posed by our adversaries.”

“DoD fell two points short of meeting its FY 2014 target to fill 52% of Defense Intelligence Enterprise government authorized language-required positions with individuals possessing the required language proficiency, with a total fill rate of 49.4%.”

Earlier this month, the National Geospatial-Intelligence Agency also released minimal unclassified portions of its FY2015 Congressional Budget Justification Book.

DoD Again Seeks FOIA Exemption for Military Doctrine

The Department of Defense last week asked Congress to enact a new exemption from the Freedom of Information Act for military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. A similar request by DoD last year was not acted upon by Congress.

DoD justified its current proposal as a military necessity, and as a matter of common sense:

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of the tactics, techniques, and procedures that will be employed in such operations. If an adversary or potential adversary has knowledge of such information, the adversary will be better able to identify and exploit any weaknesses, and the defense of the homeland, success of the operation, and the lives of U.S. military forces will be seriously jeopardized.”

This year’s proposal was drafted as an amendment to the existing FOIA exemption for DoD critical infrastructure. So it has some noteworthy features that were not included in last year’s proposal: The use of the exemption would require a written determination by the Secretary of Defense that the public interest does not outweigh the need to protect the information. The Secretary would also have to prepare a written statement of the basis for the use of the exemption. “All such determinations and statements of basis shall be available to the public, upon request….”

The large majority of military doctrinal publications are unclassified and publicly available. A relatively small number are classified and unavailable. But there is a middle category of unclassified publications whose distribution is restricted, which the proposed amendment aims to preserve.

Some recent Army titles that fall in that middle category include, for example: Special Forces Air Operations (ATP 3-18.10), Special Operations Communications System (ATP 3-05.60), and Countering Explosive Hazards (ATP 3-34.20). The Department of Defense does not readily release such titles today, even in the absence of the proposed amendment. But in order to withhold them under FOIA, it must engage in some dubious legal acrobatics, or else practice delay and defiance.

The proposed new FOIA amendment was included in a package of legislative proposals that DoD transmitted to Congress on March 10, 2016.

*

The FOIA Improvement Act (S. 337 and HR 653), which includes several provisions that are intended to promote increased disclosure through FOIA, currently awaits consideration in the Senate. It has already been passed by the House. “It is my hope that Democrats and Republicans can come together and pass this commonsense legislation this week,” said Sen. Patrick Leahy yesterday in a Sunshine Week address at the National Archives.

But the FOIA Improvement Act does not confront the structural flaws in the law that have yielded the current logjam in FOIA processing. Nor does it acknowledge the radical mismatch between the amount of money and personnel that would be required to implement the FOIA as written and the funds that Congress has actually appropriated for that purpose.

To the contrary, “No additional funds are authorized to carry out the requirements of this Act,” the FOIA Improvement Act states.

House Poised to Pass FOIA Amendments

The House of Representatives is expected to approve a new package of amendments to the Freedom of Information Act this week, in a bill known as the FOIA Oversight and Implementation Act of 2015.

The sponsors of the bill said it “would strengthen the Freedom of Information Act (FOIA) to increase transparency and accountability in government, and improve access to government records for citizens. It amends FOIA to provide for more disclosure of records, through both proactive disclosure and limitations on the use of exemptions. [It] also encourages enhanced agency compliance with statutory requirements and improves the FOIA process for both agencies and requesters.”

The bill would codify a presumption of openness, limit the application of the exemption for deliberative records, facilitate electronic submission of FOIA requests, strengthen the Office of Government Information Services (the FOIA ombudsman), mandate Inspector General reviews of FOIA processing, and several other steps. Detailed justification for the bill is provided in a January 7 report from the House Committee on Oversight and Government Reform.

The bill was subsequently modified by the House Intelligence Committee to affirm that its provisions would not require the disclosure of properly classified information or of information that “would adversely affect intelligence sources and methods” that are protected. The term “adversely affect” is not defined but is clearly intended to limit disclosure.

Truth be told, the Freedom of Information Act is a strange law that seems engineered to create an unresolvable tension if not a complete stalemate.

The FOIA empowers individual members of the public (including me and you) to impose a legally binding obligation on a government agency. But while there are no limits on the number or type of requests that a requester may submit at no cost, agencies are nominally supposed to accommodate the demand within a fixed period and with fixed resources. And though it only takes minutes to submit a request, the time required by an agency to fulfill even a simple request is much longer. A sophisticated systems analysis is not needed to anticipate the growth of the backlogs that have in fact developed.

In a further conundrum, those agencies that are more responsive to the FOIA process thereby tend to generate more demand. There is little point in submitting a FOIA request to the Defense Intelligence Agency, to pick one example, because they won’t produce a substantive response in this decade. But other agencies that do respond faithfully are rewarded– with more requests.

The best way to untangle and realign these conflicting imperatives is not clear. More proactive disclosure of information might help, or it might simply shift the burden to more specialized and challenging requests. But just encouraging and making it easier to file FOIA requests is probably not the solution.

DoD Seeks FOIA Exemption for Military Doctrine

The Department of Defense proposed a new exemption from the Freedom of Information Act last year for information on unclassified “military tactics, techniques and procedures.” The measure was not adopted by Congress in the FY 2016 defense authorization act, but DoD is preparing to pursue it again this year.

The proposal that was submitted to Congress last year would have exempted from disclosure military doctrine that “could reasonably be expected to risk impairment of the effective operation of the armed forces” and that had not already been publicly disclosed.

“The effectiveness of any United States military operation is dependent upon the enemy not having knowledge of how U.S. military forces will be used,” DoD stated in its justification for the exemption. “Commanders need to have all advantages at their disposal to be successful on the battlefield; if the enemy has knowledge of the tactics, techniques, or procedures that will be used, a crucial advantage is lost and success of the operation and the lives of U.S. military forces are seriously jeopardized.”

DoD claimed that it would have been able to exercise this withholding authority until 2011, when a Supreme Court ruling in the case Milner v. Department of the Navy“significantly narrowed” the scope of FOIA Exemption 2. “This proposal would reinstate that protection to ensure effective operation of U.S. military forces and to save lives.”

The first thing to say about the proposed DoD FOIA exemption is that, given the realities of government information security today, any prudent military commander would have to assume that the adversary already possesses the unclassified military doctrine documents that the exemption would protect from public disclosure. The government has repeatedly been unable to protect many types of information of much higher sensitivity.

If that were not the case, the proposed DoD exemption would make sense up to a point. But it stops making sense where DoD “tactics, techniques and procedures” are themselves the focus of appropriate public attention. For example, U.S. techniques for the interrogation of detained persons have been the subject of intense public controversy as to whether they are illegal or inhumane. Likewise, offensive cyber operations involve important public policy questions that go beyond the tactical interests of the military. The DoD proposal does not appear to make allowance for mandatory FOIA disclosure in such compelling cases.

In another even more ambitious proposed FOIA amendment, DoD last year sought to nullify the 2011 Supreme Court decision in Milner altogether, and to reinstate the pre-Milner status quo with its more expansive withholding authority.

“The effect of the decision in Milner is that it exposes for public release certain critical information previously interpreted as being exempt from disclosure under the ‘High 2’ exemption,” the DoD proposal explained. “The Administration believes that, following the Supreme Court’s decision, there is a critical gap in the exemptions in the current FOIA statute. This proposal is designed to close that critical gap.”

Both DoD FOIA proposals — the specific exemption for unclassified tactics, techniques and procedures, and the broad nullification of the Milner decision — were excluded by Congress from the FY 2016 defense authorization act “due to jurisdictional concerns and process issues (but not content issues),” according to an internal DoD planning document.

But both are expected to be presented again this year. DoD will advance its proposed FOIA exemption for military doctrine, while the proposed Milneramendment, with its government-wide implications, has been transferred to the Department of Justice for separate submission to Congress.

Competencies of Intelligence Community Employees

Employees of the U.S. intelligence community are expected to be bold, innovative and imbued with moral courage.

At least, those are the desired qualities that are defined in a series of Intelligence Community Standards (ICS) first issued in 2008 that have just been released under the Freedom of Information Act.

Even a non-supervisory employee at levels GS-15 and below is expected (under ICS 610-3) to demonstrate creative thinking (he or she “designs new methods and tools where established methods and procedures are inapplicable, unavailable, or ineffective”); to consider alternative points of view (she “seeks out, evaluates, and integrates a variety of perspectives”); and to display intellectual integrity (he “exhibits courage when conveying views, presenting new ideas, and making/executing decisions irrespective of potentially adverse personal consequences. Does not alter judgments in the face of social or political pressure.”).

Higher-level, supervisory personnel are to do all of that, and more (ICS 610-4).

And senior officers (ICS 610-5) “are expected to personally embody, advance and reinforce IC core values: a Commitment to selfless service and excellence in support of the IC’s mission, as well as to preserving, protecting, and defending the Nation’s laws and liberties; the integrity and Courage (moral, intellectual, and physical) to seek and speak the truth, to innovate, and to change things for the better, regardless of personal or professional risk.”

Considering the state of the species, it would be remarkable if more than a small fraction of the IC workforce comes close to meeting the lofty standards for performance and conduct that are described here. But perhaps these statements of expectations themselves serve a wholesome, instructive purpose, making their own fulfillment somewhat more likely.

And the standards are more than rhetorical flights. They are to be used (pursuant to Intelligence Community Directive 610) for “qualification, training, career development, performance evaluation, [and] promotion.”

Principles for Implementing IC IT Enterprise

The guiding principles for implementing and operating the Intelligence Community (IC) Information Technology Enterprise (ITE) were set forth in a 2013 memorandum from the Director of National Intelligence that was recently released under the Freedom of Information Act.

The purpose of IC ITE (pronounced “eye sight”) is to establish a common information architecture for the entire U.S. intelligence community, thereby fostering integration and making information sharing among agencies the default option.

“Information acquired, collected, or produced by IC elements shall be available for access for all IC missions and functions, subject to applicable legal and policy requirements,” the 2013 DNI memo said.

Once available through IC ITE, however, access is still to be limited by need-to-know. “Determinations about access to and use of such information within IC ITE shall continue to be based upon content and mission need.”

Nevertheless, agencies are expected and required to make “their” information available to the larger IC. “Unless a discovery exemption has been obtained, originating IC elements shall authorize and provide for automated discovery and retrieval of intelligence and intelligence-related information in IC ITE.”

“IC ITE moves the IC from an agency-centric IT architecture to a common platform where the Community easily and securely shares technology, information, and resources,” according to an ODNI fact sheet. “These new capabilities, with seamless and secure access to Community-wide information, will positively and deeply change how users communicate, collaborate, and perform their mission.”

IC ITE technically “went live” in 2013, but it is still at an early stage of development.

“The classified annex of the Intelligence Authorization Act for Fiscal Year 2015 required the CIA, DIA, NRO, NGA, and NSA to provide specific plans for adoption of IC ITE-compliant capabilities,” the Senate Intelligence Committee noted in a report earlier this year.

CIA Reviews “Operational Files” Exemptions from FOIA

The CIA Information Act of 1984 authorizes the Director of the Central Intelligence Agency to designate certain Agency records as “operational files.” Doing so makes them exempt not only from disclosure, but even from search and review under the Freedom of Information Act.

The 1984 Act also requires the Agency to perform a “decennial review” at least every ten years in order to determine whether any of the designated operational files exemptions can be rescinded, so that the affected files would become subject to a regular FOIA search and review.

The third such decennial review is now underway.

The CIA is soliciting public comments to help identify categories of Agency records that are of particular historical or public interest value and that have been exempted from normal processing under the FOIA as operational files. Comments are due on May 1, the CIA said in an April 20 Federal Register notice.

The first decennial review of the operational files exemption, completed in 1995, led to the opening of four file categories to FOIA search and review.  The second decennial review, completed in 2005, yielded no newly opened file series but did lead to the designation and exemption of 23 new operational file categories. This was an outcome not contemplated in the statute (50 USC 3141(g)), which says nothing about using the decennial review to create new exempted categories. (Secrecy News, April 19, 2006).

In comments submitted to the CIA today, the Federation of American Scientists offered several suggestions for consideration in the current decennial review, including these:

*    The operational files exemption should not be applied to any records that are 25 years old or older.

*    Clandestine service history records and records of imagery analysis should be removed from the operational files category.

*    Files pertaining to civilian casualties of CIA operations (including covert actions) should not be exempted from regular FOIA processing, nor should records of CIA interrogation and detention practices be considered exempted operational records.