Seeking a better FOIA appeal process

There seems to be a perennial legislative urge throughout the states to tinker with aging Freedom of Information statutes.  One such impulse has to do with the appeal process.  It is acknowledged by some legislators that the public needs a simpler, less expensive, more accessible means of appeal.

Some have suggested that legislatures could insert a special FOIA court or commission between the first appeal (from a bureaucrat's decision about a disclosure issue to the bureaucrat's department head) and the appeal from the department head's ruling to a court of general jurisdiction (with all the attendant rules, procedures, crowded dockets and expense).

I favor another approach.  Many states have an administrative law system wherein special judges are assigned to the various state departments to resolve controversies between the department and outside parties challenging the department's authority.  My preference is to beef up the existing administrative law apparatus to accommodate intermediate FOIA appeals, rather than creating another layer of bureaucracy.

A new FOIA intermediate appeal process should have the following characteristics:

1)  Simplicity; short forms, abbreviated procedural rules, no appearances in person (everything on paper filed by email or postal service), but paperwork may be prepared by legal counsel.  These provisions relieve both sides of the burden of traveling long distances and curtail redundant argument.

2) Short, limited procedural steps, none exceeding 30 days, including the pendency of the judge's decision.  Examples:  the requester would have 30 days from receipt of the government's denial of disclosure (including the government's failure to make a timely response to the request and/or its claim that the record doesn't exist) in which to submit the appeal form; a further 30 days for the government's response; and no more than 15 days for an optional rebuttal.

3)  The only questions to be decided by the administrative law judge would be (a) whether the requester's description of the desired record was adequate, (b) whether a government delay was justified, (c) whether assessed costs were reasonable or (d) whether the record sought is exempt in whole or part.

4)  For each question resolved in whole or part in the requester's favor, the government would be required to pay the requester $1000.

5)  No appeal to a higher court could be taken until the administrative law process was completed.  A requester would have an appeal to a higher court as of right.  The government could appeal by leave of the higher court.

Bear in mind that provisions like these are no substitute for much more fundamental changes, such as instantaneous, searchable archiving online.

Michigan Legislature's circular path on outdated FOIA amendments

How do you explain the circular path to oblivion that recent proposals to amend Michigan FOIA seem to follow? 

It starts with reintroducing a bill that died in the previous session.  Lobbyists for agencies, municipalities and the like point out the unbearable burden FOIA has imposed.  After awhile, discussions and news coverage dwindle.  The bills slumber, the session ends and the bills expire.

Michigan Municipal League's Nikki Brown said recently that cities need the ability to recover the true costs of FOIA requests.  Her comments accentuate the red herring that opponents fall back on.  Our statute requires a written request, then a response after a search.  Officials decry the cost and inconvenience.

But, with a small investment in software, most public records can be made available without cost or inconvenience simply by posting them online in searchable archives as soon as they are created or acquired.

It's not cost and inconvenience that offends bureaucrats as much as the fear that open access will reveal foolishness, incompetence, wastefulness and crime.

Michigan's outmoded FOIA process needs major revisions to take advantage of new technology for open access to government records without officials playing a gatekeeper role.

USAG Eric Holder says one thing, does another

U.S. Attorney General Eric Holder began his administration of the Justice Department with a grand statement of intentions with regard to Freedom of Information. A Department press release on March 19, 2009 read in part:

WASHINGTON – Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines today that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government." At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency... 

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner," said Attorney General Holder. "The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so...

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law...

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests...

 http://www.justice.gov/opa/pr/2009/March/09-ag-253.html

 USDOJ's Office of Information Policy in a FOIA post in 2009 stated (excerpt):

The combined impact of the President’s FOIA Memorandum and the Attorney General’s FOIA Guidelines is a sea change in the way transparency is viewed across the government. As a result of these directives there are now:
         * New approaches to responding to requests and to working with requesters.
         * New, more limited standards for defending agencies when they deny a FOIA request.
         * New requirements to maximize the use of technology to disclose information.
         * New requirements to post information online affirmatively, in advance of FOIA requests.
         * New focus on the broad array of agency personnel whose actions impact the FOIA.
         * New accountability requirements, particularly for agency Chief FOIA Officers who must report to the Department of Justice each year. 

 http://www.justice.gov/oip/foiapost/2009foiapost8.htm

But contrary to its lofty pronouncements early in the Obama Administration, USDOJ under Attorney General Holder has assumed an aggressive stance against government transparency.  On April 3, 2013, Kevin Gosztola reported on Firedoglake's "The Dissenter" (excerpts):

A federal appeals court in Washington, DC, rebuffed a clear attempt by the United States Justice Department to further pervert the Freedom of Information Act process...

Citizens for Responsibility and Ethics in Washington (CREW) sued the Federal Election Commission (FEC) on May 24, 2011, when it failed to produce documents on individuals at the FEC, who CREW believed were refusing to enforce campaign finance laws...

The lawsuit challenged the withholding of the documents and also the Justice Department’s interpretation of a rule in freedom of information law that requires agencies to communicate a “determination” on whether it will comply with the FOIA request within 20 working days. ..

By law, as the ruling describes, “A FOIA requester must exhaust administrative appeal remedies before seeking judicial redress. But if an agency does not adhere to certain statutory timelines in responding to a FOIA request, the requester is deemed by statute to have fulfilled the exhaustion requirement.”

The Justice Department had argued to ”trigger the requirement that a requester actually exhaust administrative remedies before bringing suit, the government merely needs to indicate that it is in the process of responding to the request.” 

But Judge Brett Kavanaugh, speaking for a unanimous appellate panel, wouldn't have it:

“An agency could respond to a request within 20 working days in terms not susceptible to immediate administrative appeal – by simply stating, in essence, that it will produce documents and claim exemptions over withheld documents in the future,”...

“Then, the agency could process the request at its leisure, free from any timelines. All the while, the agency’s actions would remain immune from suit because the requester would not yet have been able to appeal and exhaust administrative appeal remedies.”...

“By arguing that it made a “determination” in March and simultaneously saying that nothing could be administratively appealed until June...[t]he FEC’s position on CREW’s request amply demonstrates the impermissible Catch-22 it seeks to enshrine in the law.”

Tom Blanton, Director of George Washington University's National Security Archive observed:

“The Justice Department, by making outrageous litigation claims like the ones the D.C. Circuit rejected today, is undermining President Obama’s entire open government agenda. Attorney General Holder needs to provide some adult supervision, or another presidential term will pass with Justice’s lawyers making the same old secrecy arguments.”

 http://www.gwu.edu/~nsarchiv/news/20130402/

Gosztola again:

Last month, Blanton informed Congress during a hearing on FOIA held during Sunshine Week that the Justice Department had not in any case since 2009 “changed its litigation posture and refused to defend an agency” that was withholding documents. That means since 2009, whenever a requester has challenged agency refusals to provide responsive documents, the Justice Department has come to the aid of that agency.

 http://dissenter.firedoglake.com/2013/04/03/court-rejects-justice-department-effort-to-enshrine-catch-22-into-freedom-of-information-law/

So I'm wondering, will the real Eric Holder please stand up?

 

Apply FOIA disclosure to state legislators

In the original California Public Records Act, the legislature exempted itself and the California courts from disclosure requirements.  However, the separate Legislative Open Records Act grants public access to legislative records.

Court decisions have broadened such disclosure requirements.  For example, "In December 2011, a Sacramento Superior Court judge ruled that the California Assembly must disclose budget records of individual lawmakers, handing a victory to newspapers that filed a lawsuit accusing legislators of flouting the state's open records laws."  http://sunshinereview.org/index.php/California_Public_Records_Act

Also, a California court rule mandates public disclosure of state court administrative records.

Read more: http://sunshinereview.org/index.php/California_Public_Records_Act#ixzz2PDXI2DDp

 

California has a long history of legislative tinkering with its public disclosure laws. 

In 2004, California voters approved a state constitutional "sunshine" amendment, applicable to public bodies, without excluding the legislature.

In New York, the legislature is included (through extraordinary provisions) in the state's Freedom of Information Law, but state courts are not.  However, provisions in other public access legislation do apply to the courts.

South Carolina is considering adding the legislature to the list of state government functions covered by its Freedom of Information Act.

Rep. Bill Herbkersman wrote recently, "We must reform and further define the rights of citizens and news organizations in obtaining information, and the responsibilities of public officials to provide appropriate information in a timely and cost-effective manner."

He went on to say,  "I am a strong advocate of open government and I fully support the elimination of the blanket legislative exemption from FOIA. It is unfair and unwise to excuse the lawmakers from the reach of the law."

http://savannahnow.com/bluffton-opinion/2013-03-30/still-tweaking-foia-bill-easter-break-under-way#.UVcMtjdc324


A bill to include the Michigan legislature in the disclosure requirements of the state's FOIA has been dormant for a long time.