The Senate Judiciary committee reported the FOIA Improvements Act of 2014 to the full Senate by a unanimous vote last week. More than 70 transparency and watchdog groups urged the committee to pass the bill, and the unanimous vote will give the bill a little more momentum, raising hopes that it might get a floor vote during the lame duck session.
In a managers amendment released days before the vote, the committee stripped the most aggressive provision from the bill, which would have allowed judges to apply a balancing test to federal agencies'
frequent and capricious use of Exemption Five. The provision was dropped at the request of several Senate offices, who feared it would be too divisive. Sen. Dianne Feinstein's staff was working hard behind the scenes to protect Exemption 3.
Transparency groups are still happy with how the bill turned out, though. As Josh Gerstein writes, there's still plenty of teeth left in the legislation:
The legislation would still make an important change to the FOIA exemption at issue, known as Exemption 5. It would be limited to 25 years after a record is created. Currently, use of the exemption by agencies is open-ended even though a similar restriction on presidential records disappears 12 years after a president leaves office.
The measure also would put into law the presumption of disclosure as well as the so-called foreseeable harm standard, which requires agencies not simply to cite a FOIA exemption to withhold records but also to show how some related harm would be likely to result from disclosure. The Clinton and Obama administrations issued directives to that effect, but the George W. Bush administration reversed the Clinton directive. The legislation would make the current policy law and prevent any future president from altering it.
“The federal Freedom of Information Act has long needed a tune up to ensure the law continues to serve the public’s interest and provides individual citizens and the press a means for overseeing the affairs of their government,” American Society of News Editors president Chris Peck said in a statement. “This bill will fix some very important problems that have become evident in recent years. We are especially happy to see additional support given to the Office of Government Information Services and welcome a centralized FOIA ‘portal,’ both of which make it easier for those outside the corridors of power to participate in government.”
The White House, which is the most transparent administration in history, has yet to take an official position on the bill.
- A New York trials court judge rejected the NYPD's argument that it could assert Glomar privileges over records regarding its surveillance of New York City Muslim communities. The decision breaks with a recent ruling at the same level which affirmed the NYPD's power to withhold the existence of documents. Both cases are likely to be appealed.
- In response to New York Times FOIA lawsuit, FBI declassifies portions of 2010 report on use of "exigent letters" used to obtain phone records through extra-judicial means.
- UVA law school team sues DOJ for records on non/deferred prosecution of major companies.
- Related: Jason Leopold files FOIA lawsuit for AG nominee Loretta Lynch's handling of HSBC case
- Minnesota must release records on Stingray cell phone surveillance.
- Baltimore prosecutors toss evidence rather than reveal cell phone surveillance methods.
Senate opposition to CIA email purge plan: The top Democrat and Republican on the Senate Intel Committee wrote a letter to the National Archives and Records Administration opposing the CIA's plan to purge its email archives. "We request that NARA reconsider its tentative approval. The National Archives must ensure there is a thorough, systematic, and orderly way to preserve these important documents."
PACER restores court records: You might remember awhile ago there was a ruckus when PACER suddenly dumped a bunch of its old court records. Those records have been restored, PACER has announced.
MuckRock's Michael Morisy on how to appeal rejected FOIA requests. "It’s very easy to get discouraged because usually with FOIA requests you have waited months and months and then you get rejection and it’s pretty intimidating. I would encourage veteran FOIA requesters to appeal every single response they get back. Even if they get some documents, a lot of times people are pretty successful in appealing and saying I don’t think this is everything, keep looking."
DHS found 12,000 FOIA requests sitting around in boxes: Sprawling bureacracy not great for transparency, Government Accountability Office report on Department of Homeland Security finds: "Nonetheless, CBP experienced a large increase in the number of its backlogged requests from fiscal year 2011 through fiscal year 2013—from 4,356 requests to 37,848 requests. According to CBP officials, two problems, in particular, contributed to the higher numbers. First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system. The officials stated that CBP subsequently cleared all of these requests."
At least they're honest: From a Justice Department Inspector General audit of the Sunrise, FL police department's participation in asset forfeiture program: "We asked the Police Department for a record of this meeting to determine the process by which the procedures were applied in cases where payments were made from equitable sharing funds. However, the Captain told us that this process was not documented because the record would be subject to State of Florida public records laws, and the Police Department did not want investigative documents released for public consumption."
Help the Sunlight Foundation's Open Civic Data project: The Sunlight Foundation wants you! " Imagine getting a push notification letting you know when your city council is taking up legislation to improve bike lanes in your neighborhood, and then being able to easily call or email your council member to weigh in on the ordinance. Or being able to enter your zip code on a website to find out who your representatives are — from your town to state capitol to Congress — and seeing what bills they’re voting on and how you can get in touch to have your voice be heard? This can all soon be a reality — but we need your help to make it happen."
Off the record, no comment: The Center for Public Integrity has a fun little Tumblr dedicated to public officials and agencies who refuse to comment.
OGIS Director Miriam Nisbet is retiring at the end of the month.
Job Listing: OpenTheGovernment.org is seeking a policy associate.
Documents of Note
- MuckRock has collected all its completed and outstanding Ferguson records requests in one place. There's a big trove of data there for investigative reporters.
- Jason Leopold obtained letters to Missouri governor about Ferguson, and they're not pretty.
- An NBC News4 investigation found hundreds of foreign diplomats were pulled over in the D.C. area for serious driving offenses. It took reporter Tisha Thompson, with a little help from Twitter, six years to get the documents from the State Department. Thompson wrote a article on how the story came together. It's interesting in its own right, as well as a good primer on how to do an investigation using public records requests.
- Attention Redditors: There's a FOIA subreddit, if you're into that kind of thing.
- Good investigative work: Suicide attempts soar at San Diego juvenile hall.
- FOIA work by Conor Skelding: 'Feds arm SUNY police for active shooter response'
- Washington state AG says police don't need consent to record with body cams
- Meanwhile, Seattle PD is asking legislators to loosen transparency requirements for body cams, fearing the city will get weighed down with burdensome, expensive records requests. It says it may have to scrap the body cam program altogether, which seems a little overwrought. But their fear is not entirely unfounded: Washington public record law allows citizens to file requests anonymously, and agencies can't deny requests for being overbroad. Sometimes this leads to ludicrously huge records requests. For example ...
- Anonymous Washington man trolls so hard, requests every record from sheriff's office going back to 1776. The sheriff's office has been told it is legally obligated to reply.
- How other municipalites are dealing with public records requests for body cam footage.
- The Reporters Committee for Freedom of the Press is appealing the D.C. police department's rejection of its request for body cam footage.
- Hope for the future: The student newspaper at Northern Michigan University is keeping 'em honest. The newspaper uncovered a secret $30,000 licensing deal between the university and Starbucks. The university originally
tried to withhold the contract, saying it was "prohibited by a confidentiality clause from producing the Starbucks agreement." As far as legal strategies written on a cocktail napkin at the last minute go, this one was ... still pretty bad.
- City of Charlotte first tells FOI requester that it can't release Stingray contract "per the FBI," then says the records are exempt under North Carolina public record law.
- Dec. 1: "Dissent or Treason: Whistleblowers, Leaks and the Media" at The Newseum, 2:00 p.m.
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