When the FOIA Advisor staff last convened to chat, the Department of Justice had just released the government’s annual FOIA data for fiscal year 2018 and we were looking forward to Sunshine Week. Concerns about the coronavirus scuttled all but a few Sunshine Week events, however, and now FOIA personnel and requesters alike are largely working from home. FOIA Advisor staffers Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) share their thoughts about these exceptional circumstances.

AB: We have seen reports of significant processing delays at several agencies, notably at the FBI and the State Department, but FOIA operations at most agencies appear to be functioning. Requesters who have decried delays of any sort during this pandemic should not be taken seriously. No agency should endanger the lives of their employees in order to process FOIA requests, regardless of the subject matter of the request. Impatient FOIA requesters retain the right to file lawsuits at the usual intervals, unlike requesters in some states that have tolled or extended agency response deadlines.

KS: I agree with Allan that delays are inevitable. The time and energy worrying about delays is better spent fighting the attempts to classify coronavirus records and to eventually uncover any mistakes so we can figure out how to fix them in the future. Also of note, the Congressional Research Service recently published a survey on how thirteen agencies are processing FOIA requests. Eight agencies changed their method for receiving requests and surprisingly, only four specifically mentioned delays in response times.

AB: I should add that I do disagree with the FBI’s decision to disable its eFOIA portal. Even if the agency cannot process records remotely, it should not make it more difficult for requesters to submit requests. Perhaps one silver lining to social distancing in the FOIA context is that courts appear to be issuing more FOIA decisions recently. It could be just a coincidence, but I suspect it is because judges have more time to write opinions now.

RM: I also agree that delays are inevitable, given the reality of work life during the pandemic. However, I don’t think that sophisticated requesters and their allies in the transparency community are decrying delays as such. Rather they are highlighting the problems with how records may be processed, as Kevin suggests, or they are bemoaning how some agencies—particularly at the state and local level, it seems—have taken advantage of this crisis to justify shutting down FOI mechanisms, avoiding Open Meeting laws, and so forth. Open government shouldn’t suffer because of coronavirus. If anything, it is more important than ever for there to be robust transparency, especially when government is acting quickly and outside of “normal” procedural channels.

AB: What costs must be paid to ensure that open government “shouldn’t suffer during coronavirus”? Because unless employees are compelled to come into the workplace, open government will suffer to some extent. I can live with that because I do not believe in transparency at all costs. If agencies choose to err on the side of caution, I will not reflexively bemoan that choice as an underhanded attempt to take advantage of a crisis. And with all due respect to “sophisticated requesters,” a group to which we presumably belong, do not underestimate the scope of what they/we complain about.

RM: Yes, open government will suffer to the extent there are processing delays. But I’m more concerned with preserving the structures of open government. Closing online FOIA portals or shutting down processing altogether is completely unacceptable. And, if anything, this crisis highlights the need for serious reform at agencies that are incapable of processing records remotely, or which rely on retired agency employees for getting things out the door. To be sure, there are some records that will need to be processed on site, due to their sensitive nature. But those aren’t the sort of records sought by the average FOIA requester. As for setting the right balance, how do you feel about agencies policing whether employees are using approved methods of communication or properly preserving records? Because there is a valid concern that agency employees are at home using instant or ephemeral messaging, or personal email accounts, to conduct official business. Should we cut them slack because of coronavirus?

AB: We agree more than we disagree. As for your record preservation questions, I would not excuse the use of improper communication methods, e.g., personal email or personal instant messaging. But I am not losing sleep about it, either. Employees are aware of the rules. Hillary’s “damn emails” have not been forgotten, thanks or no thanks to Judicial Watch.

Stay safe everyone!